DELAY GUIDELINES FOR BEST PRACTICES - Louisiana … · the cost of justice and minimize the ... What aspect of the prosecution results in the most delay in a criminal ... many being

GUIDELINES FOR BEST PRACTICES

IN

DELAY REDUCTION AND CASE MANAGEMENT

Task Force on Delay Reduction and Case Management

October 1, 2004

Table of Contents

Introduction ............................................................................................................... i List of Task Force Members ....................................................................................iii Part I. Mission Statement ..............................................................................1

Part II. Sources and Causes of Delay and Ineffective Case Management..........................................3

A. Survey of Task Force Members .................................................5 B. Factors That Can Lengthen Trials Unnecessarily ....................19

Part III. ABA Trial Management Standards ..................................................21 Part IV. Best Practices Recommended by the National Center for State Courts ......................................................................33 Part V. Delay Reduction/Effective Case Management Planning and Programming ..................................................................40

A. Developing and Implementing a Court Delay Reduction Program.............................................................41 B. Model Policy Statement on Case Management .......................45 C. Managing Cases Effectively.....................................................47

Part VI. New District Court Aspirational Time Standards ...........................52 Part VII. Alternative Dispute Resolution Techniques ...................................55 Part VIII. Calendaring and Docketing .............................................................59

A. Calendaring..............................................................................60 B. Outlines of Various Calendaring Systems................................62

Part IX. Pre-Trial Management Techniques..................................................69

A. Pre-Trial Conferences – Civil Cases ........................................70 B. Pre-Trial Preparedness ............................................................72 C. Judge’s Pre-Trial Management Conference Checklist .............77 D. Scheduling Order .....................................................................82 E. Model Pre-Trial Order ..............................................................86

Part X. General Trial Management Techniques.......................................... 90

A. General Trial Management Techniques................................... 91 B. Characteristics of Judges Who Manage Trials Effectively ....... 98 C. Judicial Leadership and Vision .............................................. 100 D. Elements of Effective Trial Management ............................... 108 E. Differentiated Case Management .......................................... 110 F. Other Trial Management Techniques .................................... 115

Part XI. Management of Continuances ...................................................... 119

A. Controlling Continuances....................................................... 120 B. Illustration of the Impact of Continuances.............................. 127 C. Policy Regarding Continuances............................................. 129 D. Attorney Availability Form ...................................................... 131

Part XII. Management of Cases Under Advisement ................................... 133

A. Avoiding Cases Under Advisement ....................................... 134 Part XIII. Jury Techniques ............................................................................. 136

A. Jury Selection and Management ........................................... 137 B. Jury Management Techniques............................................... 153

Part XIV. Monitoring and Information Management .................................... 164

A. General Monitoring and Information ...................................... 165 B. Automated Case Management Information Systems............. 180

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i

INTRODUCTION

These Guidelines have been prepared by the Task Force on Delay Reduction and

Case Management of the Judicial Council (see list of Task Force members on the next

page) and are intended to reflect the best national and local practices that may be used by

district court judges to reduce delays and improve case management in their respective

courts. The Guidelines are not comprehensive but selective, and reflect the views of the

majority of members of the Task Force.

Most of the materials contained in the Guidelines have been provided by the

members from their own experiences and practices in their respective courts or developed

as a result of their discussions at Task Force meetings. Some materials have been

obtained from non-copyrighted publications of the American Bar Association and the

National Center for State Courts. Copyrighted materials have been obtained from the

American Academy of Judicial Education and the Aequitas Corporation who have

generously given the Task Force permission to include their materials in the Guidelines.

Standard 2.1 of the Louisiana District Court Performance Standards and Objective

2.1 of the Strategic Plan of the District Courts both state that the trial court should

encourage timely case management and processing. The Code of Professionalism in the

Courts (Section 11 of the General Administrative Rules of the Supreme Court) states that

judges should make all reasonable efforts to decide promptly all matters presented to

them for decision. Based on these aspirational standards, judges should take

responsibility for reducing backlogs and or a pending inventory. They should also control

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the cost of justice and minimize the waste of court time. In short, district court judges

should take responsibility for effective case management.

The purpose of the Guidelines is to assist Louisiana district judges in their

continuing efforts to manage their cases effectively and to reduce unnecessary delays.

The Guidelines are not rules and, therefore, should not be used as a basis for litigation or

sanctions or penalties. Nothing in these Guidelines alters or detracts from existing

disciplinary codes or alters the existing standards against which judicial misconduct may

be determined.

Copies of the Guidelines are available upon request from the Judicial

Administrator of the Supreme Court or from the Supreme Court’s website: www.lasc.org.

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LIST OF TASK FORCE MEMBERS

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TASK FORCE ON DELAY REDUCTION AND CASE MANAGEMENT

Committee Members

Judge Frank H. Thaxton, III, Chairman

Judge John E. Conery, Vice-Chair

Ned Diefenthal, Member

Judge Glennon P. Everett, Member

Judge Jo Ellen Grant, Member

Judge Larry J. Green, Member

Judge Ethel Simms Julien, Member

Judge Sharon Ingram Marchman, Member

Judge David Painter, Member

Patrick S. Ottinger, Member

Judge Brenda Bedsole Ricks, Member

Carolyn Jones Ryland, Member

Judge Alvin R. sharp, Member

Eugene W. Bryson, Jr., Member

Anthony J. Gagliano, Staff

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PART I

MISSION STATEMENT

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TASK FORCE ON DELAY REDUCTION AND CASE MANAGEMENT MISSION STATEMENT

The mission of the Task Force on Delay Reduction and Case Management is to develop a “best practices guide” for reducing court delays and improving case management in district courts.

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PART II

SOURCES AND CAUSES OF DELAY AND INEFFECTIVE CASE MANAGEMENT

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A.

COURT DELAY REDUCTION TASK FORCE SURVEY

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Court Delay Reduction Task Force Survey Criminal Courts 1. What aspect of the prosecution results in the most delay in a criminal

proceeding? - Misinterpretation of the constitutional and statutory victims’ rights legislation to

require that the victim determine the appropriate sentence. - Generally being unprepared and unavailable to discuss cases in advance of court date. - Defense stalling. - District Attorney continuing cases, failing to pursue pleas. - Indigent defender not seeing clients. - Uncontested continuances. - Continuances by counsel who are not prepared. - Too many cases to handle. - There are numerous problems that cause delay in the 21st JDC, many being case

specific. Delay frequently is defense oriented, to put off the inevitable. However, multi-parish, general jurisdiction does play a part.

- Pre-trial motions. - Defense attorney enrolling, - Defendant being billed and continuances by joint motion. - D.A. resetting of cases ready for plea-trial. - ADA’s are very willing to join with defense lawyers in motions for continuance. - DNA analysis very delayed. - Waiting for the District Attorney to file a bill, which is sometimes dependent upon

the crime lab’s test results, especially in drug prosecutions. - Numerous joint continuances of scheduled hearings and trials.

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- Continuing discussions. 2. Are any appearances conducted by video between the jail and the courtroom? If

so, which ones? - No, and given the location of the jail just across from the courthouse, it is better to do

the hearing in person. - One hundred percent of the official complaints by defendants are filed against the

defense attorney. - Some arraignments, some bond hearings and motions. - Yes, 72 hr. hearings in Vermilion Parish. - No. - Yes, when the monitor works. Some judges handle jail call by video, others by

phone, but almost all handle bond reductions by video in the one parish where the video works.

- Yes, felony arraignments. - Yes, 72 hr. hearing and arraignments of defendants still in jail. - 72 hr. hearings and jail arraignments. - Yes, 72 hr. hearings held Monday – Friday. - Arraignments of pre-trial detainees held twice weekly. - Yes, the initial appearance. 3. How often are jury terms scheduled, and what is the average number of cases

docketed for trial on each term? - Once a month on average, sometimes one will have two dockets while another month

may have none (85 – 120) on each docket. - We have convinced the judges to do just criminal for one year (i.e. four judges at a

time) and then rotate to civil. That worked very well but apparently the judges felt there were political disadvantages to this proposal.

- While my experience with jury pool selection is limited to Orleans and Jefferson

Parishes, and the Orleans Federal District Court, Jefferson has a system that I consider greatly superior to any other that I have heard about. In Jefferson, jurors are

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required to report for one day only every two years, unless selected to serve on a jury. The benefits of this are great. Not only does it relieve jurors of personal problems and inconveniences caused by lengthy waits for jury selection, but it also means that better jurors are often available (representing a more even cross-section of the community) because people are not motivated to desperately avoid jury service due to its great inconvenience. I have appeared numerous times in Jefferson Parish for the required one day, and found it to be very tolerable. I have never been selected for a petit jury, but have heard comments in the jury pool that citizens are quite willing to serve the time necessary to be a juror without rancor. They believe the system is equitable and makes only a reasonable demand upon their time.

- Once a month – 100 average. - One week per month in Acadia & Vermilion. Most weeks in Lafayette. (Average

docket – 50). - All depends on the judge. Usually at least once a month. My dockets are usually

between 60-100 cases. I schedule 15 weeks a year. - Ours is a three-parish district with eight (8) judges and one hearing officer who shares

courtrooms. We have eleven (11) criminal jury terms set per year. Additional weeks may be added to accommodate a capital murder case. Those eleven weeks are split amongst the three parishes, with approximately one a month. Cases docketed may range from 1-3 for the two weeks of criminal juries in St. Helena Parish, up to 80 cases per week in Tangipahoa Parish (five weeks per year), and Livingston Parish falls somewhere in the middle (four weeks set on the calendar per year for criminal juries).

- Two to three weeks monthly (50+). - Every week. - Weekly. - Almost weekly. About 25-30 cases are on the trial docket, but only about 8-10 on the

priority list. - 46 times a year. The average number of cases docketed for trial on each term varies

between 5 and 20, all of which is dependent on the so-called “priority list.” - Monthly. 4. Are guilty pleas taken and defendants sentenced pursuant to plea agreements on

the morning of trial? - Yes, and also pleas are taken on pre-trial dates.

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- Yes. - Sometimes. - Yes. - Yes, but defendants on the priority list must plead as charged, supposedly. - Occasionally. - Sometimes. 5. Other than arraignments, preliminary examinations, hearings on pre-trial

motions, and trials, are criminal cases docketed and the defendants brought to court for any other purpose? If so, what?

- No, (except for 72 hours hearings held in the jail courtroom by the commissioner and

revocation/writs of habeas corpus held on pre-trial dates). - Pre-trial days at which plea offers are to be made/reviewed (Plea Day). - No. - Revocations and post conviction relief. - Pro se motions. - Sentencing; probation revocation hearings. - Yes, plea changes. - They are brought to court for sentencing, when PSI’s are ordered. - Occasionally for determination of status, i.e. we try to get new cases on the same

track as an older case, probation revocation hearings, etc. - Yes, motions to revoke, to determine status. 6. Are pre-trial conferences held prior to trial? If so, when? - Yes, but these conferences are solely for the purpose of working out plea bargains.

The conferences are set from two to five weeks before the trial date. - Yes, when scheduled by the judge.

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- Yes, approximately one week. - Seldom – most plea-bargaining done directly with D.A. - Depends on the judge. When I am able, I schedule them with just my IDB lawyers

the week before a criminal trial docket. - Yes, conferences may be held on a Duty Week felony motion day, or on the Monday

pre-trial date. - Month preceding trials. - Yes – at least two weeks to trial. - Yes, week prior to scheduled trail and during court week. - During the general appearance week, in chambers, and at the bench, as time permits. - Irregularly. - Not often, but sometimes. Family Courts 1. What aspect of the case results in the most delay in a family matter? - Discovery. - Custody and community property litigation. - Unavailability of counsel and/or withdrawing of counsel. - Attorneys asking for continuances. - Most problems solved – special cases requiring more discoveries or professional

assessments are the exception. - So many want to go to trial. - Attorneys do not seem to try to work things out before a court date. - Many attorneys never communicate with their clients prior to the rule date, and they

do not communicate/correspond with opposing counsel. Most cases could be resolved if there were an exchange of information/ideas.

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- Court’s calendar due to cases being scheduled far to long. - Too many continuances and requests for five day trials. - Attorneys’ schedules. - Unrealistic time estimates - Failure to complete a trial. - Pre-trial investigations. 2. Are contradictory matters, confirmations of default, and trials on the merits

scheduled for hearing on the same day and beginning at the same time? If no, how are they scheduled?

- Yes, defaults and consents are taken with priority. Trials lasting more than one (1)

hour are specially set. - Rule days are set for contradictory matters. - No – 1 or 2 days for preliminary matters, and merits thereafter. - Depends on the judge. All of mine are set at the same time on the same day. - There are slight variations by Judge/Division. Prior to the uniform rules being

adopted, many of us started our rule day at 8:30 a.m. and handled preliminary matters such as in chamber adoptions, etc before the docket. This allowed attorneys to handle matters in our court before going to another court or another parish. In the 21st JDC generally, rules and confirmations are set on Monday at 9 a.m. and pre-trial conferences are set for 1:00 p.m. Trials are set for “week of” settings based on the pre-trial conference. Bench trials are backed up behind juries, and domestic/ community property cases that are complicated. They may be carried over from the rule docket to fill out the week. If the docket is too crowded and some cases are “bumped”, those cases take priority on the next available docket.

- Yes. - Sometimes. 3. Do the judges take advantage of court ordered mediation or the appointment of

special masters? If so, how frequently? - Not frequently. - I find that mediation/special masters are not used.

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- Yes, almost all cases without allegations of abuse are sent to mediation. - Special masters are used in court cases only. - Hearing officers pre-try all family matters. - Seldom necessary since our system employs hearing officers. - Yes, I order mediation in all custody cases. In difficult property settlements, I also

will send to a special master. - Yes, 5% of the time when it seems likely to help. - Not enough. - Rarely. - Not often. 4. Do the judges place time limits on the presentation of evidence? - No. - Frequently, to the last party to present the case, when time is running short, and the

first party has presented a lengthy case. - Not specifically. - No formal limits are established. - Not usually. - Rules – I frequently have 40 to 50 (one week 75) rules set per week. Our rules are

generally heard on Mondays. Rules are generally given 20 minutes per side. If the case needs more time, it may be scheduled after pre-trial conferences, set for later in the week if jury and bench trials settle, or set for another week as a pre-trial conference on the trial docket. For domestic/community property trials, I try to have the attorneys prepare any stipulations regarding evidence and/or witnesses in advance and present with their opening.

- Very seldom – usually on same attorney. - Yes. - Yes, some do.

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- Sometimes. 5. Do the judges allow oral argument and if not, under what circumstances is it

restricted? - No. - Yes. - Yes, oral arguments. - Yes, if time is short, I will restrict time limits. - Yes, very little restriction until the judge’s patience runs out. 6. Are pre-trial conferences held prior to trial? If so, when? - We have hearing officer conferences prior to trial at least two weeks before trial. - Pre-trial orders would be very helpful in family court. We do not have them and this

results in confusion which could be eliminated with a pre-trial order. - Yes, usually immediately before the trial (morning of trial). - Yes, pre-trials are held on the day of trial unless the parties accused request

otherwise. - Hearing officer conferences are set within 21 days of filing any family matters. - Seldom scheduled – often held on date of trial or hearing. - Usually the morning of the hearing. - Yes, cases in our district are scheduled on a week of basis. Pre-trial conferences are

held on the Monday of the trial week beginning at 1:00 p.m. - Yes – prior to trial. - Yes, pre-trial conferences are usually held on the morning the rule is scheduled to be

heard.

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Civil Courts 1. What aspect of the case results in the most delay in a civil matter? - The failure to have a discovery/scheduling order that the court will hold the litigants

to. - Obtaining jury trial dates, particularly in parishes other than Lafayette (i.e., St. Martin

Parish that only has two civil jury trial weeks per year per judge). - Too much paper pushing in big defense firms. - Pre-trial discovery and appeals. - Discovery causes the most delay including the scheduling of it and the disputes

surrounding it. - Assembling the jury venue. - Discovery proceeding. - Selection of an unreasonable trial date. - Attorneys wanting continuances. - Last minute motions. Attorneys waiting until late to complete discovery. - Joint continuances. - Discovery not being answered and attorneys not communicating. - Discovery. - Attorneys’ schedules. - Delay in discovery that results in attorneys unprepared for trial. - Pre-trial discovery and preparation. 2. Are contradictory matters, confirmations of default, and trials on the merits

scheduled for hearing on the same day and beginning at the same time? If not, when are they scheduled?

- I am not sure I understand. It depends on the jurisdiction.

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- Any matter requiring testimony and other evidence are scheduled at the same time on the same day.

- No, but contradictory matters (both with and without witnesses) and default

confirmations are scheduled for hearing on the same day and time. - Usually. - Frequently, after sounding the docket, judges do not release lawyers to return later in

the day, but make everyone sit and wait while others argue. - No - defaults are heard by the duty judge. Contradictory matters are normally set on

Fridays, and trials are set Monday – Thursday. - Contradictory matters are held at a minimum every other Friday. Defaults are

generally handled by the duty judge. Trials in the merits are set daily, Monday – Thursday.

- Most times they are, but an attempt is always made to accommodate lawyers’

schedule. - Court is convened at 9:00 a.m. daily. - Rule days are separate from merits days. - Rules, etc. scheduled Monday mornings – merits begin that afternoon and continue

until completed – all cases for the week set same day. - Depends on the judge. I handle motions on two Fridays a month. I will handle short

confirmations of default any day at 9:00 a.m. - All jury trials are scheduled on a Monday. Judge trials may be set Monday –

Wednesday. I have jury trial weeks and judge trial weeks. - Rules - Mondays, Motion Hour - Tuesday through Friday. - Yes. - Sometimes. 3. Do the judges take advantage of court ordered mediation or the appointment of

special masters? If so, how frequently? - Not in my experience.

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- While litigants frequently use mediation, it is extremely rare for the court to order it (less than one percent of cases).

- Very infrequently. - Yes, occasionally. I encourage mediation. - Mediation is used but would be used more frequently if judges were allowed to order

it without an attorney requesting it. Special masters are used in complex cases. - Yes, when requested and agreed to by all counsel. - When possible. - Special masters are appointed in complex litigation, primarily class actions, once the

parties and the court decide it would facilitate resolution of the case. This is done on a case-by-case basis.

- Mediation is encouraged when settlement conferences are unsuccessful. - No. - Seldom necessary. - Rarely – sometimes in a succession case. - Yes, as often as possible. - Yes, 5% of the time. - Not enough. - Rarely. - Not often, but sometimes. 4. Do the judges place time limits on the presentation of evidence? - To some degree. It depends on the judge. - No. - Yes, sometimes very unfairly.

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- Normally I do not. However, if its repetitive, I do limit it. Also, I request that the attorneys tell how long a matter should take. I will limit them if they substantially exceed the time they estimated.

- No, trial dates are set based on the availability of the court and counsel. An

agreement is made with regard to the number of trial days needed. - Not that I can recall. - No formal limit. - Rarely. - Generally no. Request as many stipulations as to facts, evidence, etc, as possible. - Some do. - Yes. - Sometimes. 5. Do the judges allow oral argument and if not, under what circumstances is it

restricted? - Generally oral argument is, and should be, allowed. - Always. - Usually not very restricted. - Yes, oral argument may be prohibited under the uniform local rules in certain

instances. - Yes, oral argument is permitted during rules as well as at trial. - Generally, opening and closing statements in bench trials are not necessary. - Yes. - Yes – restricted on case-by-case basis. - Yes – cases in our district are scheduled on a week-by-week basis. Pre-trial

conferences are held on the Monday of the trial week beginning at 1:00 p.m. - Yes.

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- Yes, minimal restriction. - At times. 6. Are pre-trial conferences held prior to trial? If so, when? - Generally not. If so many times it is the day of the trial. - These are almost always available upon request. Without requests, however, pre-trial

conferences are rarely held and, if held, are frequently a waste of time (i.e., what actually occurs is a trial scheduling/deadline conference which 50 percent of the time is handled by the law clerk).

- Almost always. Usually within a week of trial. - Settlement conferences are held 15-30 days prior to trial. - Yes, at the setting of the trial date and at any time requested by the attorney. - Yes, pre-trials are held to pick trial dates. - The court conducts settlement conferences prior to trial when requested. - Pre-trials may also be held on the morning of trial to discuss settlement. - Yes, pursuant to pre-trial order. - Ordinarily, when the trial is set, a pre-trial conference is held. - I am available throughout discovery and prior to trial at the request of the parties,

otherwise, the next meeting is the morning of the trial. - In all jury cases, approximately one month prior to trial. - Not usually in bench trials unless the parties believe it will assist in settling the case. - Mandated by some judges in jury trials – others as needed or requested. - Yes – judges differ. I set mine approximately 3 weeks prior to trial. Some judges set

trial dates at a pre-trial conference. - Preceding month. - Prior to trial.

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- Yes, status conferences to set trial date and impose a scheduling order can be held once issue is joined in the case. Pre-trial conferences may be held at any time.

- Yes, 60 – 90 days prior to trial.

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B.

FACTORS THAT CAN LENGTHEN TRIALS UNNECESSARILY OR MAKE THEM LESS EFFECTIVE

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FACTORS THAT CAN LENGTHEN TRIALS UNNECESSARILY OR MAKE THEM LESS EFFECTIVE

1. Inexperienced lawyers

2. Poorly prepared lawyers

3. Lengthy voir dire questioning

4. Cumulative/repetitive questioning

5. Exhibits not marked in advance

6. Late or absent witnesses

7. Tardy lawyers

8. Overuse of sidebar conferences

9. Unnecessary interruptions

10. Unnecessarily long opening and closing arguments

11. Unprepared judges

12. Use of unedited depositions

13. Failure to obtain stipulations to uncontroverted facts

14. Attorney scheduling conflicts

15. Witnesses (especially experts) with scheduling conflicts

16. Unnecessarily long recesses and lunch breaks

17. Difficulty in transporting criminal defendants and witnesses from jail or other

secure facility to the courtroom

18. Failure to resolve motions in advance of trial

19. Lack of limits on time allowed for lawyers to present case and make arguments

20. Lawyers’ tactics designed to lengthen trials

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PART III

ABA TRIAL MANAGEMENT STANDARDS

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Trial Management Standards

1. Judicial trial management – general principle: the trial judge has the responsibility to manage the trial proceedings. The judge shall be prepared to preside and take appropriate action to ensure that all parties are prepared to proceed, the trial commences as scheduled, all parties have a fair opportunity to present evidence, and the trial proceeds to conclusion without unnecessary interruption.

2. The trial judge and trial counsel should participate in a trial management

conference before trial. 3. After consultation with counsel the judge shall set reasonable time limits. 4. The trial judge shall arrange the court’s docket to start trial as scheduled and

provide parties the number of hours set each day for the trials. 5. The judge shall ensure that once trial has begun, momentum is maintained. 6. The judge shall control voir dire. 7. The judge’s ultimate responsibility to ensure a fair trial shall govern any decision

to intervene. 8. Judges shall maintain appropriate decorum and formality of trial proceedings. 9. Judges should be receptive to using technology in managing the trial and the

presentation of evidence.

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PART IV

BEST PRACTICES RECOMMENDED BY THE NATIONAL CENTER FOR STATE COURTS

Source: http://www.ncsconline.org/Projects_Initiatives/BPI/CaseflowManagement.htm

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PART V

DELAY REDUCTION PLANNING AND PROGRAMMING

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A.

DEVELOPING AND IMPLEMENTING A COURT DELAY REDUCTION PROGRAM

Source: American Bar Association, Defeating Delay, Developing and Implementing a Court Delay Reduction Program (Chicago, IL: American Bar Association, 1986) and The National Center for State Courts, How to Conduct a Caseflow Management Review. A Guide for Practitioners (Williamsburg, VA: NCSC, 1994).

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DEVELOPING AND IMPLEMENTING A COURT DELAY REDUCTION PROGRAM

1. Introduction: Important Attitudes For a court delay reduction program to be successful, those planning and implementing the program must begin by securing agreement from all stakeholders regarding the following important attitudinal adjustments:

• The first important attitudinal adjustment is an agreement among the stakeholders that the court must, in some fashion, control the pace of litigation. The support and encouragement of the bar is helpful to judges making this adjustment.

• Delay is most often perpetrated because the judges and lawyers accept it

as the norm. Changing this acceptance of delay as normal requires everyone to agree that delay is unsatisfactory.

• Delay can be remedied if everyone accepts that delay is a problem, that

the problem is solvable, and that a well-planned program can solve the problem.

2. Creating the Design Team The first step in creating a delay reduction program is to establish a design team to plan the program. In establishing the design team, the following guidelines should be observed:

• The key to an effective delay reduction program is committed judicial leadership assisted by the bar. The design team should be led by judges and should involve leaders of the state and local bar.

• The ownership of the program should be broadly based. All key

players need to be represented on the design team. • The selection of a design team must consider the practical political

realities the court system. Political and financial realities must also be taken into account in establishing the design team.

3. Agenda of the Design Team The design team is responsible for planning all aspects of the delay reduction program. The design team’s agenda should include:

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• The adoption of time standards, which are the goals of a delay reduction

program.

• The planning and completion of a caseflow management review to examine how the court manages its cases and its overall caseload by:

describing the current situation with respect to caseloads and

case processing in the court; assessing the effectiveness of the court’s structure and

operational procedures in relation to key areas of caseflow management;

analyzing the causes and sources of delay in the system; laying the foundation for an action plan by identifying the

strengths, weaknesses, and key problems of the court’s case processing.

• The development and implementation of an action plan to create an

effective system for managing caseflow in the court based on the analysis of the causes and sources of delay and the following principles of implementation:

The court should take early control of the case. The court should maintain continuous control of the case. Events should be scheduled within short time limits. Attorneys’ schedules should be reasonably accommodated. Events should occur when they are scheduled to occur. System performance should be continuously monitored

against the adopted time standards. The monitoring system should be as simple as possible

while still providing the information needed for the management of caseflow.

The court should exercise control over discovery to ensure that the time spent on discovery is proportionate to the value and complexity of the case.

Cases should be scheduled so as to maximize the productivity of the court without over scheduling.

An important part of high productivity is date certain scheduling. The participants in the case must believe that the cases will be heard when scheduled.

A firm continuance policy is required for high productivity, date-certain scheduling.

Alternative Dispute Resolution (ADR) techniques should be part of the delay reduction plan.

The use of pre-trial scheduling and settlement conferences should be part of the plan.

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Lawyers should be required to file a date certain certificate of readiness.

The court should institute readiness calls to ensure readiness for trial.

The court should develop and implement an automated case management information system.

Adapted from: American Bar Association, Defeating Delay. Developing and Implementing a Court Delay Reduction Program (Chicago, IL: American Bar Association, 1986) and The National Center for State Courts, How to Conduct a Caseflow Management Review. A Guide for Practitioners (Williamsburg, VA: NCSC, 1994).

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B.

MODEL POLICY STATEMENT ON CASE MANAGEMENT

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Model Policy Statement on Case Management

The judges of the __________________________ recognize that the residents of ______________________ require a system of justice that can efficiently, effectively, and economically handle the many cases filed each year in the court. All parties appearing in court and using its services require a system that recognizes the different and conflicting needs of attorneys, litigants, and witnesses. Such a system needs to be predicable, protective of due process, protective of the public interest, accessible, convenient and timely. To establish or sustain such a system, the judges of this court are implementing the following changes: 1. 2. 3. 4. 5.

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C.

MANAGING CASES EFFECTIVELY

Source: Case Management, American Academy of Judicial Education, Court Improvement Through Education.

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MANAGING CASES EFFECTIVELY

I. MANAGEMENT GOALS

A. Reducing backing and/or pending inventory

B. Controlling cost of justice

C. Minimizing waste of court time (continuance policy)

D. Maintaining equality, fairness, and integrity II. JURISDICTIONAL FACTORS

A. Number of judges or judicial officers available for hearings

B. Unique cases filed in a particular jurisdiction (complex, toxic tort, high volume traffic, etc)

C. Resources available to track and supervise cases (staff, computers, administrative procedures, etc.)

D. Statutory restrictions (i.e. divorce waiting periods, grand jury schedules)

III. WHO SHOULD CONTROL THE MANAGEMENT OF CASES?

A. Attorneys “It is the lawyers’ case!”

B. Judge “The court is responsible for supervising case progress.” IV. PRINCIPLES OF EFFECTIVE CASE MANAGEMENT

A. More effective use can be made of the limited time available for trials in most courts. Sound trial management by judges results in trials that are more expeditious and more effective, without compromising fairness.

B. There is broad support – by judges and lawyers – for effective

management of trials by judges. Effective trial management results in more easily comprehended trials, avoidance of unnecessary delay,

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elimination of unnecessary costs to litigants and to the court system, and a more positive public perception of the courts.

C. Trial management is in large part as aspect of the sound exercise of

judicial discretion. Many judges already employ some techniques of effective trial management.

D. The most appropriate disposition of a case is most likely to occur when

lawyers are prepared and have opportunity and incentive to discuss disposition prior to trial.

E. Courts can encourage lawyer preparation, which in turn will facilitate non-

trial disposition or allow more effective trials. V. BASIC CONCEPTS OF EFFECTIVE CASE MANAGEMENT

A. Early judicial control B. Continuous judicial control C. Short scheduling D. Reasonable accommodation of attorneys E. Establishment of expectations that events will occur as scheduled VI. FUNDAMENTAL ELEMENTS OF SUCCESSFUL PROGRAMS

A. Judicial commitment and leadership B. Court consultation with the bar C. Court supervision of case progress D. Standards and goals E. Monitoring and information systems F. Case assignment systems G. Early court intervention and early dispositions H. Setting firm trial dates I. Controlling continuances and avoiding backlogs

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J. Systems approach and vision K. Attention to detail VII. HOW TO MANAGE CASES EFFECTIVELY

A. Set firm deadlines for all phases of the pre-trial process. B. Set firm trial dates as early in the process as possible.

C. Conduct regular case management conferences, particularly in complex cases.

1. Scheduling conference

2. Status conference

3. Settlement conference 4. Trial management conference

D. Limit or control discovery as much as possible, and require parties to

develop plans to complete the discovery process quickly. E. Control motion practice. F. Encourage cases to be resolved by summary judgment motions where

appropriate.

G. Create and support alternative dispute resolution mechanisms, including judicial settlement conferences.

H. Develop a specific plan to resolve discovery disputes. I. Impose sanctions and fees where appropriate for misuse of court time and

resources. J. Allow exceptions to the rules where appropriate, but do not let the

exceptions swallow the rule. K. Develop strategies for addressing lawyer noncompliance. 1. Learn the reason why the deadline was not met 2. Learn how much time is required to comply

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3. Reinforce the importance of the rule/policy 4. Develop a new timetable for compliance 5. Inform the attorneys of the reason for the rule/policy 6. Impose appropriate sanctions L. Develop form orders for scheduling and conferences. M. Develop a process for regular view and dismissal of state/inactive cases.

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PART VI

NEW DISTRICT COURT ASPIRATIONAL TIME STANDARDS

Source: Task Force on Delay Reduction and Case Management Proposed Time Standards.

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TASK FORCE ON DELAY REDUCTION AND CASE MANGEMENT PROPOSED TIME STANDARDS

Criminal Cases Introduction. Judges have the authority and responsibility to insure that criminal cases are not unnecessarily delayed, that they do not drift and that they are resolved in a timely and orderly manner. Once criminal cases have been filed and allotted to a judge, the judge should manage the cases assigned to that Court effectively and efficiently. As a means of assisting the attorneys and the parties in meeting their respective obligations, the Task Force on Delay Reduction and Case Management does hereby recommend the following for criminal cases: Capital Cases -- Disposition within 12 - 24 months of the date of the

filing of the bill or indictment. Non-Capital

Felony Cases -- Disposition within 9 - 18 months of the date of the filing of the bill or indictment.

Misdemeanor

and Traffic Cases -- Disposition within 6 - 9 months of the date of the filing

of the bill, indictment, or affidavit.

Revised

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Civil Cases Introduction. Prior to the setting of a trial date, the timing of civil cases in Louisiana is driven by the actions of the opposing attorneys, particularly in terms of the time to complete discovery. After the setting of a trial date, however, judges have a general responsibility to ensure that cases are not delayed by unnecessary continuances or by other dilatory tactics of the opposing attorneys. The Task Force on Delay Reduction recommends the following aspirational time standards as tools for reducing delay and managing cases more efficiently. Regular Civil Jury Cases -- Trial and disposition within 12 months of the date

of request to set for trial. Regular Civil Non-Jury Cases -- Trial and disposition within 9 months of the date of

request to set for trial. Summary Issues -- Covered by statutory provisions or court rules. Contested Domestic Relations Cases -- Hearing on partition and contested divorces and

disposition within 9 months of the date of request to set the hearing date.

Uncontested Domestic Relations Cases -- Hearing and disposition within 6 weeks of the date

of request to set the hearing date.

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PART VII

ALTERNATIVE DISPUTE RESOLUTION TECHNIQUES

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A. Alternative Dispute Resolution (ADR). The term “alternative dispute resolution (ADR)” refers to any method other than litigation for the resolution of disputes. In many states, ADR techniques are “annexed” to courts, meaning that courts “mandate” the use of one or another ADR technique as a necessary pre-condition before formal adjudication. In Louisiana, ADR is completely voluntary but, as provided in Rule 11.0 of the District Court Rules, the district courts of Louisiana encourage and support the use of alternative dispute resolution to promote the resolution of disputes and refer all counsel to the Louisiana Mediation Act, La. R.S. 9:4101, et seq. Additionally, the district courts of Louisiana, through the same rule, also encourage and support the use of special masters in appropriate circumstances. ADR can save time and money for the litigants. It certainly saves time and costs for the courts and can be an effective strategy in a court’s overall delay reduction program. For these reasons, courts should work with the bar to publicize the variety of ADR techniques that are available. They should also encourage lawyers generally to use such techniques, but should especially encourage the use of these techniques when the courts are first engaged in the case. Listed below are a variety of ADR techniques that courts may wish to publicize:

Arbitration. The term “arbitration” refers to a process in which a neutral third person or a panel, called an arbitrator or an arbitration panel, considers the facts and arguments which are presented by the parties and renders a decision. The decision may be binding or nonbonding as provided in the rules.

Case Evaluation. See “early neutral evaluation.”

Early Neutral Evaluation. The term “early neutral evaluation,” sometimes called “case evaluation,” refers to a process in which a lawyer with expertise in the subject matter of litigation acts as a neutral evaluator of the case. Each side presents a summary of its legal theories and evidence. The evaluator assesses the strength of each side’s case and assists the parties in narrowing the legal and factual issues in the case. This conference occurs early in the discovery process and is designed to “streamline” discovery and other pretrial aspects of the case. The early neutral evaluation of the case may also provide a basis for settlement discussions.

Mediation. The term “mediation” refers to a process in which a neutral third party, called a mediator, acts to encourage and assist in the resolution of a dispute between two or more parties. The process is informal and non-adversarial. The objective is to assist the disputing parties in reaching a mutually acceptable agreement between or among themselves on all or any part of the issues in dispute. Decision-making authority rests with the parties, not the mediator. The mediator assists the parties in identifying issues, fostering joint problem-solving, exploring settlement alternatives, and in other ways consistent with these activities. Although in court-annexed or court-referred mediation programs the

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parties may be ordered to attend a mediation session, any settlement is entirely voluntary. In the absence of settlement, the parties lose none of their rights to a jury trial.

Mini-Trials. The term “mini-trial” refers to a settlement process in which each side presents a highly abbreviated summary of its case to representatives of the parties who are authorized to settle the case. A neutral advisor presides over the proceeding to give advisory opinions or rulings if invited to do so. Following the presentation, the representatives of the party seek a negotiated settlement of the dispute, sometimes with the assistance of the neutral presiding officer.

Settlement Week. The term “settlement week” refers to a dispute resolution process in which litigation in a court is suspended for a week while all available judges and volunteer mediators attempt to settle cases through mediation.

Summary Jury Trial. The term “summary jury trial” refers to a process of resolution involving a non-binding abbreviated trial with mock jurors drawn from the jury pool or selected through agreed-upon jurimetrics selection. A judge or magistrate presides. Principals representing the parties have authority to settle the case. The advisory jury verdict which results is intended to provide the starting point for settlement negotiations among the principals.

B. Informal Pre-Trial Hearings Courts may facilitate delay reduction by allowing specially trained hearing officers, law clerks, social workers, or other appropriate court personnel to conduct informal pre-trial hearings. In a pre-trial order, the court may set a date, time, and place for an informal pre-trial conference to be held before a qualified officer appointed by the court. At the informal pre-trial hearing, the officer shall indicate the nature of the formal court process – its steps, procedures, and general timeframe. The officer shall also seek to identify the issues in dispute in the case and may also seek to advise and assist the parties in arriving at a voluntary adjustment of differences at the pre-trial hearing. However, the officer should not, at any stage of the proceedings, force any compromise upon reluctant counsel or parties. The officer can also use the pre-trial hearing to determine indigency and, in criminal and juvenile cases, to introduce an indigent defendant to a public defender. At such informal pre-trial hearings, the court does not assess or collect any costs. The costs are borne solely by the court.

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C. Collaborative Divorce Process The Collaborative Divorce Process starts from the assumption that formal judicial adjudication of divorce cases may not be the best dispute resolution option in such an emotionally entangled situation. The ultimate objective of the process is a judicial recognition of the dissolution/reconciliation agreement. However, the process is designed to empower the parties to make a joint decision in an informal manner that controls the emotional aspect of divorce. The Collaborative Divorce Process is interdisciplinary. The lawyer represents a client, protects the client’s interests, and addresses all the needs. Emotional concerns are referred to mental health coaches trained in the dynamics of divorce. Parents agree on a one child specialist to report back to them what the child needs. All the financial information goes to a trained financial specialist who gives a report not favoring either side but presenting the realities of the choices available and their consequences. There are no competing experts. There is no public record. There is no need to parade all the dirt accumulated through the marriage before the judge, none of the wasted money and time sitting and waiting on repeated rule dockets, none of the hallmarks of today’s divorce procedures. In the long-run, the process is ultimately cheaper and less time consuming than the present system because it often leads to reconciliation, facilitates decision-making, and uses less expensive professionals than lawyers to discover and present information, even when the outcome is to proceed to a formal divorce judgment. Through the process, lawyers, mental health professional and experts agree that they will not proceed to court as the first step. All efforts are spent in defusing the emotional tensions and collaborating on what the best resolution should be. If the process fails parties can become litigants, but with other counsel. The emphasis, at the start of the process, is on zealous collaboration, not adversarial pursuits. There are two different emerging models of the Collaborative Divorce Process. One is simply having the lawyers agree to do everything and to only call in other specialists as they deem necessary. The other starts as an interdisciplinary process with mental health and financial professionals being involved from the beginning and each discipline making the decision if they are needed. The court’s role in the process is: (1) to understand the process and publicly support it; (2) to develop procedures and court rules to allow and support those using the process; and (3) to actively promote such collaborative efforts.

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PART VIII

CALENDARING/DOCKETING

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A.

CALENDARING

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CALENDARING Calendaring is the process of determining how to plan and organize adjudicative activities within a week or month of a judicial year. Generally there are three types of calendaring systems – direct or individual calendaring; master calendaring; and several hybrid systems. Direct Calendaring. Direct calendaring is a system of assigning cases, used in the federal courts and in many state courts, whereby a case initially assigned to a judge stays with that judge from the time of assignment to the end of the case. Proponents of direct calendaring argue that this system of assignment provides a quick and accurate way to measure judicial efficiency. If cases move efficiently through a judge’s courtroom, it generally means the judge is managing his docket effectively. If cases stack up on the judge’s docket, the judge cannot blame anyone else for the problem. Master Calendaring. Master calendaring is a system whereby each proceeding of a case is assigned to a judge scheduled to hear that type of proceeding on a particular day. Proponents of master calendaring argue that this system of assignment is more efficient in that cases are not dependent on one judge's schedule and availability, settlement is reached earlier, and greater impartiality is achieved. Hybrid Calendaring. Hybrid calendaring is a name applied to various calendaring systems that combine features of direct and master calendaring. Importance of Calendaring. The method of calendaring is very important to delay reduction and effective case management. Some case types, for example, juvenile and domestic, appear to lend themselves best to direct calendaring because of the need for expedition due to the mandatory time lines imposed by the Children’s Code but also by the philosophy of the efficacy of one-family/one-judge policies. Ultimately, each court must decide the form of calendaring that works best for it. However, the calendaring decision should be based on more than simply tradition and judicial convenience. Considerations of delay reduction, improved access to justice, and effective case management should also be part of the calculus of decision-making. Illustrations of the Various Forms of Calendaring. The various forms of calendaring are illustrated in the charts at the end of this section which have been reprinted from the following publication with the permission of the American Academy of Judicial Education: American Academy of Judicial Education (AAJE), Case Management: The Litigants’ Bill of Rights, Booklet for a Conference Held on August 23-28, 2003. The alternative system of assignment is master calendaring whereby each proceeding of a case is assigned to a judge scheduled to hear that type of proceeding on a particular day. Proponents of master calendaring argue that this system of assignment is more efficient in that cases are not dependent on one judge’s schedule and availability, settlement is reached earlier, and greater impartiality is achieved.

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B.

OUTLINES OF VARIOUS CALENDARING SYSTEMS

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PART IX

PRE-TRIAL MANAGEMENT TECHNIQUES

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A.

PRE-TRIAL CONFERENCES

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Pre-Trial Conferences – Civil Cases

Rule 9.14 of the District Court Rules provides that any party may request in

writing, or the court on its own motion may order, a La. CCP Article 1551 scheduling

conference between counsel and the court to whom the case has been allotted. A party

requesting such a conference must deliver the original and one copy of the request to the

clerk of court. The clerk of court shall file in the original in the suit record, stamp “filed”

on the copy, and route the copy to the assigned judge. Within 30 days after receiving a

request for a scheduling conference, the court shall schedule a conference for addressing

the matters set forth in La. CCP Art. 1551. The scheduling conference may be held by

any appropriate means, including in person, by telephone or teleconference.

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B.

PRE-TRIAL PREPAREDNESS

Source: Case Management, American Academy of Judicial Education. Court Improvement Through Education.

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PRE-TRIAL PREPAREDNESS

Courts use “pre-trial conferences” for a wide range of purposes. Effective judges learn to sharpen the definitions of such conferences, and to utilize different strategies depending on the goals for each conference. I. SCHEDULING CONFERENCE A. Typically held early in the life of the case B. Establish schedule for completion of discovery C. Fix dates for pre-trial filings, future conferences and trial D. Explore possibilities for early settlement E. Explore possible use of alternative dispute resolution mechanisms II. STATUS CONFERENCE – CAN BE HELD AT ANY TIME ON

INITIATIVE OF PARTIES OR JUDGE A. Confirm or revise schedule for discovery or pre-trial events B. Resolve open issues III. SETTLEMENT CONFERENCE – CAN BE HELD AT ANY TIME; MOST

OFTEN CONDUCTED WHEN DISCOVERY IS COMPLETE OR NEARLY COMPLETE

A. Evaluate the case B. Emphasize possibilities for non-trial resolution C. Narrow areas of dispute IV. TRIAL MANAGEMENT CONFERENCE – HELD ONE TO THREE

WEEKS BEFORE TRIAL DATE. FOCUSES ON PREPARATION OF CASE FOR TRIAL, NOT SETTLEMENT. CONDUCT IS CRUCIAL TO SUCCESSFUL MANAGEMENT OF THE TRIAL.

A. Insure that discovery is complete and/pr resolve remaining discovery

issues. B. Require counsel to focus on their legal theories and objectives.

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C. Resolve pending motions and potential evidentiary disputes, narrow issues where possible.

D. Make “final” determination about possibility of settlement. E. Finalize agreements for exchange of exhibits and witness lists. F. Establish ground rules and protocols for trial. 1. Limits on communications and courtroom movement 2. Use of leading questions 3. Method for making objections 4. Jury selection 5. Handling dangerous exhibits/firearms 6. Marking or pre-marking exhibits 7. Limits on opening/closing statements 8. Conduct of bench conferences 9. Eliminate trial surprises. 10. Timing is important a. Conferences more than three weeks before trial date are not

likely to be effective because counsel is not prepared. b. Conferences held on the morning of trial are not effective

because not enough time is allowed to address issues that may arise.

G. Reduce conference outcomes to writing. V. PRELIMINARY MOTIONS Motions should be encouraged when they seek to narrow issues, discouraged

when used merely for delay or tactical advantage.

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A. Injunctive Motion (Temporary Injunctions, TROs) – seek extraordinary relief, so standard is high

1. Immediate irreparable injury 2. Substantial likelihood of success in litigation 3. Order’s scope must be limited and specific 4. Statute may allow court to grant without notice; the party against

whom taken must ultimately be allowed a hearing 5. Denial of TRO not a bar to relief being granted at full evidentiary

hearing 6. Most states require security (bond or cash) 7. Court may decline to grant TRO but still permit hearing on

preliminary injunction B. Discovery Motions These are the bane of judges’ existence. Strategies to limit them, or

address disputes immediately are critical. 1. Often filed to gain tactical advantage over an opposing party 2. Depositions 3. Interrogatories 4. Compelling examination 5. Compelling disclosure of experts C. Dispositive Motions If used wisely, such motions can save substantial court time by elimination

or narrowing of cases/issues not properly before the court. 1. Examples a. Lack of personal jurisdiction b. Lack of subject matter jurisdiction

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c. Statute of limitations d. Improper or incomplete joinder e. Wrong party in interest 2. Summary Judgment a. Federal Rule 56 (emulated in most states) sets the standard b. Should be encouraged to limit or dispose of issues D. Motions in Limine 1. Should be addressed before the morning of trial. 2. Should be in writing. 3. Motions seeking to exclude deposition testimony should contain

specific page/line citations. E. Management of Pre-Trial Motion Practice 1. Limit the right to bring motions 2. Restrict the types of motions where oral argument is allowed 3. Consider using telecommunications where feasible

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C.

JUDGE’S PRE-TRIAL MANAGEMENT CONFERENCE CHECKLIST


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JUDGE’S PRE-TRIAL MANAGEMENT CONFERENCE CHECKLIST

(1) Has the Joint Pre-Trial Statement been filed? Review and note any deficiencies

before the conference. (2) Settlement: a. Can case be settled? Explore. b. How far apart are the parties? c. Have there been any offers of judgment? (3) Determine and discuss whether the jury can be waived. If not, decide with

counsel: a. Whether a jury of less than the full number can be utilized. b. The number of jurors needed, including alternates. c. The method by which the alternate jurors will be chosen (either the last

juror(s) chosen (statutory in civil cases) or by lot (preferable in civil cases and mandated in criminal cases).

d. The number of peremptory strikes per side. e. Your method of placing jurors in box and substitution of stricken jurors. f. If trial is lengthy, should Jury Commissioner pre-screen? See p.6. (4) Inform counsel regarding hours of your division, i.e., when trial will begin and

end each day; when recesses will probably be taken; their length, etc. Notify counsel not to suggest recesses in open court but rather, if they need to take an unscheduled recess, to approach the bench with a request for it.

(5) Obtain the correct names for the parties for voir dire. Leave off any names of

parties who were dismissed or settled out. (6) Prepare list of witnesses for voir dire. Require lawyers to delete names of

witnesses who will not be called but leave some latitude for “maybes”. Determine the actual length of trial and advise lawyers of any potential interruptions because of your calendar and their calendars. Remind counsel that witnesses who have not previously been disclosed will not be permitted to testify.

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(7) Discuss what case is about so as to be able to characterize case in voir dire. Prepare short summary of facts before the conference and determine from the lawyers whether they agree to the statement. Modify it with them in an effort to keep it brief, objective and without dispute. Alternatively, instruct lawyers to prepare it and present it at commencement of trial.

(8) Review method of voir dire and establish, with counsel’s assent, time limits for

attorney participation. a. If court conducts entire or most of the voir dire discuss:

- Questions court will ask. - Questions proposed by counsel. At the very least, advise counsel to

present their requested questions before the morning of the trial.

b. If court permits voir dire by counsel, admonish against:

- Brainwashing. - Argument.

- Exacting of promises.

- Scheduling on jury instructions.

- Repeating questions previously asked by court.

c. How much time counsel will need to exercise peremptory challenges and

how will it be accomplished? d. How will challenges for cause be handled? In front of or in absence of

jury? How long a recess will be taken to accomplish this? (9) Determine who will present the opening statements and the length of time needed.

Remind counsel of the purpose of opening statement and the prohibition against argument. Determine if counsel want to make a brief opening statement before voir dire. If so, a stipulation is required on the record.

(10) Determine nature and number of motions in limine. Require the filing of motions

in limine 5 judicial days before trial and responses by noon the day before trial. Remind counsel of the reason for motions in limine (prohibiting against disclosing prejudicial matters to the jury to prevent a mistrial).

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(11) Ascertain who will be at counsels’ tables and determine seating arrangements if there are multiple parties and counsel cannot agree.

(12) Remind counsel of deadline for submitting instructions, verdict forms, proposed

findings of fact and conclusions of law (day before trial). Request copy of instructions on IBM-compatible double-sided, high-density 3.5 inch diskette, in Word Perfect 5.0 or 5.1, if instructions are complex and non-standard.

(13) Discuss your preference regarding the following and determine counsels’

objections, if any: a. All proposed exhibits shall be pre-marked and exchanged between the

parties. Each party shall file with the court at least the day prior to trial a jointly prepared statement listing the exhibits and indicating any objections to exhibits of the opposing parties with a brief statement of reasons. Failure to object to an exhibit shall be deemed a waiver of all objections, and the exhibit may be entered into evidence without further argument. Exhibits which are not pre-marked and exchanged shall not be admitted in evidence except on a showing of good cause.

b. Making objections. Short, simple, legal basis with no response unless

requested by the court. c. Examining witnesses. Only direct, cross and re-direct permitted. Counsel

should not approach witness without permission, etc. d. Drawing of diagrams and introduction in evidence even though not

disclosed before trial. e. Motions during trial and offers of proof should be done out of presence of

jury with as little interruption of trial as possible. f. Bench conferences should be discouraged. g. Method of displaying exhibits to jurors. Passing exhibits distracts from

testimony and delays trial. h. Judicial notice. Counsel shall submit a written request for any items

which the court should judicially notice at least 5 days before trial. Any objection shall be made in writing the day before trial.

i. Remind counsel to be on time for each session. j. Remind counsel not to argue with one another during trial.

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k. If you permit jurors to ask questions, advise counsel of written requests by jurors and how it will be handled.

l. Will any witnesses need to be called out of order? m. After recesses, witness should be on the witness stand. n. Advise lawyers when you instruct the jury – before or after final

summation. (14) Determine whether and when counsel will need special equipment and whose

responsibility it will be to provide it (i.e., slide or overhead projector, shadow box, video or audio equipment). Remind counsel that they should test equipment so that there will not be delays. If you believe a transcript of the video is necessary, establish deadlines for submission.

(15) Establish order of trial, if multiple parties, and if you will allow more than one

party to cross-examine. (16) Ascertain if there are any special problems, particularly evidentiary. Require, if

depositions and discovery responses are to be used in lieu of live testimony, a page and line menu 5 days before trial (if not already submitted) with written objections, if any.

(17) Determine if rule as to the exclusion of witnesses is to be invoked. (18) Based on all of the above, dictate a pre-trial order conveying all of the above

discussed and agreed to by court and counsel and give counsel a copy of the guidelines.

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D.

SCHEDULING ORDER

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E.

MODEL PRE-TRIAL ORDER

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PART X

GENERAL TRIAL MANAGEMENT TECHNIQUES

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A.

GENERAL TRIAL MANAGEMENT


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TRIAL MANAGEMENT

I. OBJECTIVES

A. Plan and control the management of trials, with or without juries; B. Examine issues that should be resolved or narrowed prior to trial; C. Recognize and develop strategies to avoid interruptions and delays that lengthen trials; and D. Develop techniques to overcome impediments to effective trial management. II. MOTIVATION FOR MANAGEMENT Why “manage” a trial? Because shortening (or avoiding) a trial will increase

court capacity for other waiting matters! Fewer than 5% of cases filed result in trials, but more than 40% of the working time of an average general jurisdiction trial judge is spent in trials. A well-managed trial:

A. Enhances the appearance of justice B. Facilities a fair and efficient hearing of the evidence C. Costs less D. Achieves sound results E. Eliminates backlog and delay III. COURT SCHEDULING AND TRIAL MOMENTUM A. Establishing and maintaining trial momentum is critically important to

effective trial management. 1. Interruptions are distracting; participants have to refocus on what

they were doing prior to the interruption. 2. Repeated stops and starts use energy. 3. Some interruptions – lunch, breaks, and emergencies – may be

unavoidable.

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B. Time management issues. Planning for a trial must be done in the context of a judge’s overall years,

month, and week, taking into account the resources and limitations of the court.

1. Weeks involving trials should be organized to “protect” trial time

and minimize other interruptions. 2. Effective use of trial time result in shorter trials. 3. Other business, if it must be conducted, should be set at the

beginning or end of a day, so that a jury does not have to wait while the business is conducted.

4. Evidentiary issues should always be resolved before trial. 5. Scheduled lunches and breaks should be taken at optimum

interruption points where possible – i.e., the end of direct testimony rather than the middle – instead of a predetermined arbitrary time.

6. Attorneys should have a clear understanding about witness

attendance in response to a subpoena, getting clients back to court on time after lunch, etc.

IV. TRIAL PROCEDURE CHECKLIST Remember: The judge is the gatekeeper, timekeeper, referee, and hall monitor in a

trial. You must keep an ear open at all times for evidentiary lapses, and an eye open at all times for sleeping jurors, or those who need a bathroom break! Organization and management remain critical.

A. Opening Statements 1. Limit time when appropriate. 2. Prohibit argument. B. Presentation of Evidence 1. Interpreter/aids to witnesses or parties Consistent with concepts of due process and the Americans with

Disabilities Act, courts may be required to assist parties or witnesses through signers, interpreters, or otherwise.

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2. Witnesses Though the judge does not control witness management directly,

the court’s attitude and direction are critical to ensuring that trials are enhanced, not diminished, through the presentation of witnesses.

a. Management issues (1) Use of subpoenas (2) Scheduling and time management (3) Adequate waiting areas (4) Rule of sequestration (5) Expert issues (6) Attorney preparation for questioning b. Substantive issues (1) Exclusionary rule (2) Defendant may be called by plaintiff in civil case. (3) Right to compulsory process. (4) Defendant in criminal case need not testify. (i) Jury-out hearing re: convictions (ii) Understanding of decision to/not to testify (5) Statements of criminal defendants may be

introduced if determined to be voluntary. 3. Judicial Supervision of Evidence/Case Presentation Federal Rule of Evidence 611 (adopted in most states) allows a

judge some discretion in controlling presentation of evidence. EXERCISE IT!

a. Permit leading questions on background.

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b. Allow cross-examination beyond the scope of direct testimony.

c. Require that deposition testimony be summarized. d. Consider note taking and questions by jurors. e. Try dispositive issues first and separately, (1) Liability before damages (2) Actual damages before punitive damages C. Disposition prior to verdict or finding 1. Motions for Directed Verdict/Judgment of Acquittal or Mistrial 2. Motion for Mistrial in Criminal Case – consider double jeopardy

consequences D. Discussion of jury instructions 1. Require counsel to make written requests. 2. Conduct discussions on the record. 3. Provide standard and proposed instructions in writing to attorneys. 4. Court must ensure instructions are clear, simple and balanced. 5. Court has duty to instruct on all matters of law; failure may be

plain error, even without request. E. Closing argument 1. Limit length when appropriate. 2. Prohibit prejudicial comments – plain error may require court

intervention. F. Jury instructions 1. General requirements a. Court is responsible to insure that instructions are clear,

simple balanced statements of applicable law or principles.

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b. Court has duty to instruct on all matters of law; even without request, may be plain error to omit.

c. Counsel should be required to submit requested instructions

with citations of authority. d. Discussion of instructions and objections should always be

placed on the record. e. Court should determine how special verdicts are to be

received, especially concerning alternative interrogatories or sequential issues.

f. Court should maintain file of standard instructions, and

distribute proposed instructions to counsel as soon as possible during trial process.

g. Court should instruct jury about function and selection of

presiding juror. 2. Manner of Submission to Jury a. In writing, perhaps with jurors receiving individual copies

as the court reads aloud. b. Most states require jury instructions to be read aloud. c. Judge should avoid commentary on evidence or intimation

as to weight of evidence or credibility of witnesses. d. Be mindful of demeanor, body language, and tone of voice. e. Before jury retires, court should instruct on requirement of

unanimous verdict, and should give housekeeping instructions.

G. Final instructions re: jury deliberations 1. Unanimity required 2. Duty to consult 3. Duty to hold to honest conviction 4. Method of selection of presiding juror

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5. Housekeeping/comfort issues V. POST DISPOSITION MANAGEMENT A. Proceedings requiring post disposition action 1. Divorce/paternity cases: motions to enforce or modify custody,

visitation, support 2. Abuse and neglect: placement review, permanency planning,

termination of parental rights, adoption 3. Appointment of fiduciary: probate, guardianship, conservatorship 4. Criminal: probation violations, post conviction review 5. Traffic/criminal: collection/enforcement of fines and fees 6. Juvenile: violation of probation in delinquency proceedings 7. Enforcement/collection of civil judgments B. Management strategies 1. Periodic review 2. Scheduling of hearings 3. Link to other cases 4. Determine when all work done

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B.

CHARACTERISTICS OF JUDGES WHO MANAGE TRIALS EFFECTIVELY


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CHARACTERISTICS OF JUDGES WHO MANAGE TRIALS EFFECTIVELY

• Decisiveness

• Exercise control over trial -- esp. voir dire

• Punctuality

• Minimize trial recesses

• Avoid interruptions

• Knowledge of the Law

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C.

JUDICIAL LEADERSHIP AND VISION

Source: American Academy of Judicial Education and the Aequitas Corporation.

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D.

ELEMENTS OF EFFECTIVE TRIAL MANAGEMENT


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ELEMENTS OF EFFECTIVE TRIAL MANAGEMENT

1. Leadership by the judge

2. Communication – listening to the lawyers, facilitating their communications with each other and with the court

3. Advance notice to lawyers about court procedures, expectations, deadlines

4. Opportunity for lawyers/parties to be heard when a problem arises

5. Predictable processes – events take place on schedule

6. Decisiveness

7. Limiting time for voir dire and other trial segments, in consultation with lawyers

8. Not arbitrary

9. Fair, balanced approach

10. Not “over-managing”

11. Avoiding/minimizing interruptions and delays

12. Efficient use of court and juror time

13. Ability to establish/maintain expectations about schedules and procedures

14. Punctuality

15. Minimize unfair trial surprises

16. Familiarity with relevant legal principles

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E.

DIFFERENTIATED CASE MANAGEMENT

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DIFFERENTIATED CASE MANAGEMENT

1. The Concept

Differentiated case management (DCM) is a procedure providing for the different management of cases based on case characteristics. DCM involves: (1) the identification, grouping, and assignment of cases to designated processing “tracks” each of which provide an appropriate level of judicial, staff, and attorney attention; (2) the employment of a case management plan in each track that is tailored to the general requirements of similarly situated cases with time standards appropriate to each track; and (3) the provision for the adjustment of initial track assignments based on the special needs of any particular case. The DCM concept is premised on the assumption that all cases are not alike and, therefore, should not be subject to the same processing and standard timetables. Some cases, can be disposed of promptly with little or no time needed for discovery and few intermediate events. Others require extensive court supervision over pre-trial motions, the scheduling of expert witnesses, and settlement negotiations. Moreover, some cases may need to be given scheduling priority for a variety of other reasons, including the imminent threat of harm to a party, the age or physical condition of a witness, the need for speedy criminal justice, the need to move a child to permanency as rapidly as possible, or some other valid concern. Inherent in the DCM concept is the recognition that some cases can – and should – proceed through a court system at a faster pace than others. 2. Types of Tracks

Depending on case type, various types of case tracks may be developed and used as part of the DCM procedure. Listed below by case type are some of these tracks.

Civil Cases: Expedited or Fast Track Alternative Dispute Resolution Tracks Mediation Track Arbitration Track Other ADR Track Standard or Routine Track Complex Track

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Child Dependency Cases Expedited or Fast Track Alternative Dispute Resolution Tracks Mediation Track Other ADR Concurrent Planning Track Standard or Routine Track Delinquency Cases Expedited or Fast Track Alternative Dispute Resolution Tracks Mediation Track Other ADR Standard or Routine Track Criminal Cases Expedited or Fast Track Alternative Dispute Resolution Tracks Mediation Track Arbitration Track Other ADR Track Standard or Routine Track

Pro Se Prisoner Track Capital Post-Conviction Track

3. Examples of Assignment Procedures to DCM Tracks

Each judge will conduct an ADR evaluation conference during the early stages of case development to determine suitability for ADR. The court may order use of either a mediation track, an arbitration track, or another ADR track. Parties may choose one of the tracks by agreement. The counsel for both parties shall discuss and attempt to resolve the assignment of the case to one of the DCM tracks prior to the pre-trial or scheduling conference. At the pre-trial hearing, the judge shall attempt to get the parties to agree on the scheduling of the case to one of the DCM tracks. If the parties cannot agree on the DCM track, the judge shall make the final decision. The assignment can be changed at any time prior to the scheduling of the case. Initial track assignment is made by a judicial officer at the case management (pre-trial conference). The assignment may be changed later at the discretion of the court. In assigning cases to DCM tracks, the court will consider legal issues, the amount of discovery, and the number off act/expert witnesses.

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All parties in civil actions will complete a DCM Information Statement that will be used by the court to make initial track assignments. The court may later alter track assignments. Track assignment is determined in consultation with the parties and their counsel at the pre-trial conference. At the pre-trial conference, a judicial officer will assign the case to one of the DCM tracks. If the nature of the case or other pertinent factors subsequently change, the judicial officer may reassign the case to another appropriate track. Cases are assigned to tracks by the magistrate judge at the initial scheduling hearing. The court will use these criteria to assign cases to a particular track: Expedited or Fast Track:

• legal issues are few and clear • limited discovery is required • few real parties of interest • five or fewer fact witnesses • no expert witnesses • less than five likely trial days • the case is usually for a fixed amount of damage claims • administrative cases that are likely to result in default of consent

judgments can be resolved by pleadings or by motion

Standard or Routine Track:

• more than a few legal issues, some of which are unsettled • routine discovery required • five or fewer real parties of interest • ten or fewer fact witnesses • three or fewer expert witnesses • ten or fewer trial days • damage claims are mounting

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Complex Track

• numerous, complicated, and possibly unique legal issues • extensive discovery involved • more than ten fact witnesses • more than three expert witnesses • less than ten likely trial days • damage claims usually require expert testimony

4. Example of Reassignment Procedure

A. Reassignment Request Procedure. A case may be reassigned from

one DCM plan to another by the presiding judge or the designee of the presiding judge in accordance with the following procedures: Within 60 days of a party’s first appearance in the action, such party desiring reassignment to a different DCM plan shall file and serve a request establishing good cause for reassignment. Requests submitted after the 60-day period, in addition to establishing good cause for reassignment must also establish good cause for the delay in the submission of the request for reassignment. All requests shall be accompanied by a proposed order and proof of service and shall be filed with the clerk of court.

B. Reassignment Factors. All written requests for reassignment shall

include discussion of the relevant factors set forth in the Rule on DCM Assignment. In addition, the request shall indicate the length of time the requesting party believes will be needed for prompt disposition of the case.

C. Opposing Reassignment. Any party may, within ten (10) days of

the receipt of service of the request for reassignment, file and serve joinder in, or opposition to, such request and shall provide proof of service to the requesting party.

D. Reassignment Ruling. No hearing will be conducted on a

reassignment request unless the presiding judge or the presiding judge’s designee otherwise directs. The presiding judge or the presiding judge’s designee shall notify the requesting party of the Court’s ruling. The requesting party shall notify all other parties of the Court’s ruling within 5 days.

E. Exception of Cases with Trial Dates. No request for reassignment

or exemption will be considered after a trial date has been set. Where a trial date has been set, the presiding judge will consider grounds for reassignment or exemption only in conjunction with a noticed motion to continue the trial date.

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F.

OTHER TRIAL MANAGEMENT TECHNIQUES

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1. Tag Team Judging

The concept of Tag Team Judging involves optimally the consent of each party and the voluntary agreement of two or more judges to assist one another in clearing each judge’s docket on a particular day. For example, assume a situation in which two judges – a judge from Section A and a judge from Section B – agree that if one or the other is able to complete his/her docket earlier than expected, the judge with the completed docket would move over to the other section and assist the judge with the uncompleted docket until all cases scheduled for that day in the two sections were heard.

The concept of Tag Team Judging does not appear to violate the civil code provisions regarding random allotment in that the cases are not reassigned to other sections. Rather, the judges are reassigned to hear cases in another section when needed.

The technique offers several advantages. It allows judges, by voluntary agreement, to clear most, if not all, cases scheduled for a particular day and, thereby reduce delay. The technique also enables judges to work a full day, thus making an adjudication day much more productive.

Some argue that the concept has two disadvantages. First, it may open a door for judicial manipulation to avoid random allotment. Second, it may encourage a judge not to expedite his/her caseload, as he or she should, because the judge could always rely on the backup judge to help clear the docket. 2. May Call Docket

The “May Call Docket” is a technique allowing attorneys with small cases to voluntarily agree to be scheduled on this special docket. If a judge is available on the day scheduled for the “May Call Docket,” the attorneys are notified and the case goes to trial in the order established on the special docket. The attorneys may be able to achieve speedier justice through the process; and the judge is kept busy, when his regular docket has been completed earlier than expected. 3. Briefs on Motions, Exceptions and Rules to Show Cause Motions, exceptions, and rules to show cause in civil and domestic cases should be submitted on briefs, without oral arguments. 4. Use of Verified Pleadings and Affidavits in Preliminary Injunctions The Court should hear all applications for preliminary injunction or for the dissolution or modification of a temporary restraining order or a preliminary injunction upon the verified pleadings or supporting affidavits, or may take proof as in ordinary cases. If the application is to be heard upon affidavits, the courts should so order in writing, and a copy of the order should be served upon the defendant at the time the notice of hearing is served.

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At least twenty-four hours before the hearing, or such shorter time as the court may order, require the applicant to deliver copies of his supporting affidavits to the adverse party, who shall deliver to the applicant prior to the hearing copies of affidavits intended to be used by such adverse party. The court, in its discretion and upon such conditions as it may prescribe, may permit additional affidavits to be filed at or after the hearing, and further regulate the proceeding as justice may require. (Source: L.C.C.P 3609) 5. Waiver of Formal Arraignment The court may permit the defendant in a non-capital felony case to waive formal arraignment by written motion filed with the clerk or court and to enter a plea of not guilty without pleading in person. The motion shall substantially comply with the format and language of the form listed below. (Source Criminal Rule XIII, 19th JDC) 6. 72-Hour Appearance in Criminal Cases Under the provisions of La C.Cr.P. Art. 230.1, the appearance of arrested persons may be made in person, by telephone, or by audio video electronic equipment at the discretion of the presiding judge. Judges should make themselves available to have such telephone or video conferencing appearance hearings. 7. Docketing of Scheduling Conferences by Telephone or Teleconference Any party may request in writing, or the court on its own motion, may order a scheduling conference for the purpose of addressing those matters set forth in La. CCP Art. 1551 between counsel and the court to whom the case has been allotted. A party requesting such a conference must deliver the original in the suit record, stamp “filed” on the copy, and route the copy to the assigned judge. Within 30 days after receiving such a request, the court should schedule a conference for the purpose of addressing those matters set forth in La. Code Civ. Proc. Art 1551, allow the scheduling conference to be held by any appropriate means, including in person, by telephone, or teleconference. (Source: General District Court Rule 9.14(b)) 8. Controlling Appearances of Law Enforcement Personnel Controlling the appearances of law enforcement personnel may be carried out when dates and times for events are selected. Scheduling as many of a police officer’s cases as possible for one court session can minimize the number of his or her appearances and eliminate conflicts over appearances in other courts. This approach is most useful in courts of lower jurisdiction, such as traffic courts, which have a large volume of cases of short hearing duration. However, high-volume criminal courts and civil courts could also benefit from such systems of control.

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One way a court can control the appearances of law enforcement personnel is to assign each police officer to one specific day out of every week or other period of time. Another way of handling police officer scheduling is to require each officer to inform the court about periods when he or she will not be available. This would allow the court to pick a time when the officer is free, and to fill its calendar. Controlling the appearances of law enforcement personnel can also be coordinated with the duty shifts of police personnel. 9. Controlling Hearings on Probation Matters Currently, many judges hold hearings to determine whether the terms of probation are being met in cases previously adjudicated. These judges are concerned either that probation fees are not being properly collected or that probation officers are not meeting regularly with their clients or that other conditions of probation are being ignored. Such hearings often consume a good portion of a judge’s day and therefore, may contribute to the delay of other cases.

To reduce or eliminate the need for probation hearings, some judges have advocated the development of a questionnaire that probation officers would be required to complete at regular intervals in the course of a probationary term. Hearings would only have to be called if the questionnaire revealed problems that could not otherwise be addressed.

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PART XI

MANAGEMENT OF CONTINUANCES

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A.

CONTROLLING CONTINUANCES

Source: American Academy of Judicial Education and the Aequitas Corporation.

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B.

ILLUSTRATION OF THE IMPACT OF CONTINUANCES


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ILLUSTRATION OF THE IMPACT OF CONTINUANCES

Sample jurisdiction misdemeanors – 1999

36,612 arraignments 111 trials

36,612 x 3 people = 109,836 people

Continue once – 109,836 x 2 = 219,622 Continue twice – 109,836 x 3 = 329,508 Continue 3 times – 109,386 x 4 = 439,344

Trial – average appearances per case = 5

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C.

POLICY REGARDING CONTINUANCES

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POLICY REGARDING CONTINUANCES

To ensure the prompt disposition of civil cases, each superior court should adopt a firm policy regarding continuances, emphasizing that the dates assigned for a trial setting or pretrial conference, a settlement conference and for trial must be regarded by counsel as definite court appointments. Any continuance, whether contested or uncontested or stipulated to by the parties, should be applied for by noticed motion, with supporting declarations, to be heard only by the presiding judge or by a judge designated by him. No continuance otherwise requested should be granted except in emergencies. A continuance should be granted only upon an affirmative showing of good cause requiring the continuance. In general, the necessity for the continuance should have resulted from an emergency occurring after the trial setting conference that could not have been anticipated or avoided with reasonable diligence and cannot now be properly provided for other than by the granting of a continuance. In ruling on a motion for continuance, the court should consider all matters relevant to a proper determination of the motion, including the court’s file in the case and any supporting declarations concerning the motion; the diligence of counsel, particularly in bringing the emergency to the court’s attention and to the attention of opposing counsel at the first available opportunity and in attempting to otherwise meet the emergency; the nature of any previous continuances, extensions of time or other delay attributable to any party; the proximity of the trial or hearing date; the condition of the court’s calendar and the availability of an earlier trial or hearing date if the matter is ready for trial or hearing; whether the continuance may properly be avoided by the substitution of attorneys or witnesses, by the use of depositions in lieu of oral testimony, or by the trailing of the matter for trial or hearing; whether the interests of justice are best served by a continuance, by the trial or hearing of the matter, or by imposing conditions on its continuance; and any other fact or circumstance relevant to a fair determination of the motion. The following matters should, under normal circumstances, be considered good cause for granting the continuance of a trial date: (1) Death.

(2) Illness of an attorney, party or witness which will seriously affect justice at the

time of trial. (3) Unavailability of the trial attorney or witness due to a conflict in schedule that

can be shown.

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D.

ATTORNEY AVAILABILITY FORM

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STATE OF LOUISIANA, PARISH OF OUACHITA FOURTH JUDICIAL DISTRICT COURT

RETURN DATE/HEARING COVER SHEET

VERSUS DOCKET NUMBER

1. Estimate of time for hearing:

2. Available dates for the next 90 days:

3. Custody – contested/uncontested: 4. Rule or trial date previously set: 5. Any special circumstances:

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PART XII

MANAGEMENT OF CASES UNDER ADVISEMENT

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AVOIDING CASES UNDER ADVISEMENT

A case under advisement is a case that has been heard and decided but awaiting a final judgment from a district, city, or parish court. There are many reasons for cases being held under advisement. A related case may be on appeal awaiting an appellate decision and the judge may wish to hold the case until the appellate judgment is rendered. A case may be awaiting the preparation and distribution of the trial’s transcript, or, perhaps, materials from the attorneys – depositions, further medical information, or a draft of the judgment itself. The case may also be under advisement because the judge has not prepared “written reasons” as required in some cases to be inserted into the judgment or has not rendered the judgment, if the judge is responsible for its preparation. The case may also be held under advisement because the judge and perhaps even the attorneys have inadvertently lost track of the issue.

Section 2 of Part G. The General Administrative Rules for all Louisiana Courts

provides that a case or other matter shall be considered as fully submitted for decision to the trial judge, and should be decided immediately upon the conclusion of a trial or hearing, and judgment signed expeditiously thereafter. The Rules also provide deadlines for the filing of testimony by deposition and/or documents, as well as deadlines for dealing with post-trial or post-hearing briefs and the preparation of timely transcripts. The Rules further provide that each judge of a district, juvenile, family, parish, city, municipal or traffic court shall report to the Supreme Court, through the Office of the Judicial Administrator, all cases which have been fully submitted and under advisement for longer than thirty days, together with an explanation of the reasons for any delay and an expected date of decision.

Cases held under advisement should be avoided for two primary reasons. First, they

cause delay and add cost to litigation. Second, they can be the cause of Judiciary Commission investigative action and disciplinary action by the Supreme Court against judges.

To avoid cases under advisement, a number of techniques are suggested in these “Best Practice” guidelines. Among these are:

(1) Hold the case open, within the time period allowed by the Supreme Court

Rule, until all depositions, documents, briefs, transcripts, and the final judgment are filed into the court record.

(2) Give firm deadlines to all parties to have depositions, briefs, transcripts, and

the final judgment filed into the court record by a date or dates certain, and have the attorneys sign off on these deadlines.

(3) Develop a tickler system, perhaps maintained by a law clerk or a secretary, to

alert the judge to deadlines and to the number of days the case is being held under advisement.

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(4) At the hearing, assign the responsibility of writing the judgment to the winning attorney and require the attorney to submit the draft judgment by a date certain to the opposing attorney for review and agreement, and ultimately to the court for final action.

(5) Have judges write the judgments instead of the attorneys so that the judges

can develop over time a judgment bank that will facilitate the process of rendering timely and consistent judgments.

(6) Adopt a court rule requiring each judge regularly to publish and post in the

courthouse or to publish no less than quarterly in a prominent local or statewide legal publication a list of all cases held by that judge under advisement from all previous weeks. Each such list should include: the case name, the case number, the date of the last proceeding, and the expected date of completion of the case.

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PART XIII

JURY TECHNIQUES

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A.

JURY SELECTION AND MANAGEMENT


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JURY SELECTION AND MANAGEMENT

I. OBJECTIVES A. Improve the jury panel selection system by enhancing the cross section of

the community from which jurors are drawn; B. Enhance the attitude of citizens in general, and jurors in particular, toward

courts, judges, and jury service; C. Assist attorneys in performing their duty to select a fair and impartial jury; D. Assist jurors in performing their responsibilities intelligently, efficiently,

and reliably; E. Evaluating your jury procedures to insure they maximize juror

performance; and F. Managing jurors in all cases with greater efficiency and confidence. II. INTRODUCTORY DISCUSSION A. Primary functions of jury trial 1. Public forum for dispute resolution 2. Due process 3. Peer participation B. Benefits of jury trial 1. Judges can demonstrate value and effectiveness of jury system. 2. Jurors have opportunity for participation in government through

public service. 3. Parties have enhanced confidence that citizens “like them” will

understand their issues and resolve them fairly. 4. Public is educated through participation and recommended

improvement. 5. Distrust in system can be minimized through participation.

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C. Entitlement to jury trial 1. Common law 2. Federal and state constitutions a. Criminal – 6th Amendment b. Size of jury c. Requirements for verdict d. Waiver e. Juvenile f. Termination of parental rights III. COMPOSITION OF JURY A. Opportunity for jury service – should not be denied or limited on the basis

of race, national origin, gender, age, religious belief, income, occupation, disability, or any other factor that discriminates against a cognizable group in the jurisdiction. See Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).

B. Master Jury List 1. Must be representative cross-section of one’s peers. 2. Source list should be compiled from one or more regularly-

maintained lists of persons residing in the court’s jurisdiction: voter registration, taxpayer, driver licensing.

3. List should be as inclusive of the adult population as is feasible. 4. List should be reviewed periodically to insure inclusiveness and

representativeness. 5. Random selection procedure must be used. C. Juror Qualifications 1. Must be 18 years of age. 2. Must be a United States citizen.

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3. Must be a resident of the jurisdiction of the court for which they are summoned.

4. Must be able to communicate in the English language. 5. Must not have been convicted of a felony (unless rights have been

restored). D. Exemption, Excuse or Deferral of Service 1. Individual states determine statutory exemptions, which should be

kept to a minimum. 2. Prior jury service within a short period of time. 3. Only permanent disability affecting the capacity to serve. (Note:

Title II, Americans with Disabilities Act, 42 U.S.C. §12101 et. seq. (1990) covers state court programs and services, including jury service. The court must provide “reasonable accommodation” to a disabled juror who wishes to serve.)

4. Vulnerability to embarrassment in voir dire examination. 5. Temporary deferral of service may be permitted in cases of public

necessity, undue hardship, temporary disability, or extreme inconvenience.

IV. SCHEDULING AND JUROR USE A. Goal: optimum use of juror time with minimum inconvenience. B. Techniques for efficiency 1. Do not call panels prematurely. 2. Use minimize panel size needed to insure sufficient jurors. 3. Make special arrangements for large panels. 4. Stagger trial starts throughout the day and week. 5. Reassign jurors who are not selected 6. Use telephone standby system if feasible.

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7. Use phone answering machines to receive and disseminate messages.

8. Maximize communication between judge and jury commissioner,

if one exists. 9. Limit peremptory challenges where possible to exercise discretion. V. JURY FACILITIES A. Provide adequate and suitable environment for jurors. B. Assure safety and security. C. Attend to the comfort of jurors. D. To the extent feasible, arrange juror facilities to minimize contact between

jurors, parties, counsel, and the public. VI. JUROR ORIENTATION A. Use the juror summons to provide information and allay fears and

concerns. B. Provide juror orientation and instruction designed to increase jurors’

understanding of the judicial system and prepare them confidently to serve as jurors. Present the orientation in a uniform and efficient manner using a combination of written, oral and audio-visual materials.

C. Prepare remarks for jury selection that will begin to orient jurors to a

particular case. D. Provide preliminary instructions to allow jurors in a particular case to

know what their job will entail. VII. JUROR COMPENSATION/EMPLOYMENT SECURITY A. Process fee payments promptly and efficiently. B. Be familiar with state law that should protect jurors from discharge or

disciplinary measures when called to serve on juries. C. Exercise discretion where necessary to order private employers to comply

with the law.

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VII. JUROR EVALUATION A. Collect information periodically to insure that the process is working: 1. Inclusiveness of the jury source list(s). 2. Effectiveness of the summoning procedures. 3. Responsiveness of individual citizens to jury duty summons. 4. Efficient use of jurors. 5. Cost-effectiveness of the system. B. Conduct jury surveys on a regular basis. IX. PROBLEM AREAS A. ADA Concerns 1. “Readily-accessible” standard. 2. Physical accessibility. 3. Need for interpreter/signers. 4. Specific disabilities which must be accommodated B. The difficult juror 1. The sleeping juror. 2. Replacement of juror in order to avoid mistrial. 3. Improper contacts. 4. Communicate with attorneys and solicit their comments before

making substitution. Make an adequate record. C. “Anonymous” juries 1. No first amendment right of public access to identity of jurors’

names 2. Court must balance public’s right to know against legitimate safety

concerns in appropriate cases.

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X. SELECTION OF TRIAL JURORS – VOIR DIRE A. Should be held on the record. B. Judge’s role in voir dire. 1. Set the tone. 2. Provide an introductory statement familiarizing jurors with the

process. 3. Conduct general voir dire. 4. Encourage responses 5. Control scope of counsel’s questions (state courts). 6. Adjudicate challenges for cause. 7. Prevent abuse. C. Purposes of Voir Dire 1. Proper – obtain necessary information to exercise challenges for

cause and peremptory challenges. 2. Improper a. Educate the jury panel about the facts of the particular case. b. Prejudice the jury panel. c. Argue the case. d. Indoctrinate the jury panel. e. Solicit promises based on hypothetical facts. f. Instruct in matters of law. g. Repeat questions posed by the court or covered by

questionnaires. h. Violate jurors’ equal protection rights.

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D. Information Concerning Prospective Jurors 1. Juror Questionnaires – if distributed in advance, can save trial time 2. Availability of Jury List(s) – to attorneys in advance of trial 3. Anonymous Jury 4. Juror Expectations of Privacy 5. Appropriate Lines of Inquiry a. Whether jurors will apply the instructions of law b. Racial/ethnic prejudice c. Juror’s religious or political views that may affect ability to

reach judgment d. Similar events in juror’s life that may cause discomfort or

bias e. Inclination of juror to give greater or lesser weight to

testimony of particular types of witness f. Relationship/acquaintance with witnesses, parties, or

counsel g. Prior grand jury or jury service which may affect service in

current case h. Personal experience as crime victim, witness, or party E. Defendant in Criminal Case Always Has Right to be Present. F. Methods of Conducting Voir Dire 1. Judge conducts entire voir dire examination in most federal courts

and some state courts. 2. Judge has responsibility for the voir dire examination but allows

participation by counsel. This is the recommended method. 3. Counsel controls the voir dire process in approximately 18 states. 4. Judge is merely present to supervise the process.

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G. Techniques for Control of Voir Dire – this is a key area of typical trial delay.

1. Time limits. 2. Questions submitted by counsel prior to trial. 3. Prohibition of improper questions. 4. Court conduct of initial voir dire to relax jurors and set tone for

attorney questions. 5. Questions directed to panel as a whole except for individual issues

in high profile cases. 6. Use of “straight jury” system instead of “strike and replace”

system of selection. H. Method of Excusal 1. Procedure should be predetermined and lawyers advised. 2. Jurors excused with court’s thanks. 3. Jurors directed as to procedure to follow upon excuse. I. Requests for Individual Voir Dire 1. Media exposure 2. Relationship/knowledge of parties/case 3. Juror’s own background (abuse, rape0 XI. CHALLENGES TO THE JURY A. Challenge to the array/venire. 1. Should be made, if possible, before the day of trial. 2. Make a written record. B. Challenge for cause.

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1. Grounds – if the substance of a juror’s response convinces trial judge that the juror is unable to unwilling to fairly and impartially hear and decide a case.

2. Physical disability of a juror that cannot be “reasonably

accommodated”. 3. Attorneys should be permitted to make challenge at bench or

sidebar. 4. Determination may be by court’s initiative or motion of counsel. C. Peremptory Challenges 1. Number of challenges set by court rule or statute. 2. No constitutional right to such challenges – Swain v. Alabama, 380

U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Allows each side to seek most sympathetic jurors.

XII. DISCRIMINATORY USE OF PEREMPTORY CHALLENGES Peremptory strikes, by definition, may be exercised for any reason and without explanation, unless a reason is specifically prohibited. A. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed2d 69 (1986).

(Prosecutor’s use of peremptory challenges to exclude all members of defendant’s race solely on racial grounds violated defendant’s right to equal protection under the laws).

B. Batson process for challenge 1. Opponent of peremptory challenge must show: a. Membership of cognizable racial group. b. Proponent used strike to remove juror of that particular

race. c. Any other factor that raises an inference that strike is

racially motivated. 2. Proponent of peremptory challenge must show: a. Neutral explanation for the strike which is clear, specific,

and legitimate.

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b. Explanation need not rise to same level as challenge for cause.

c. Explanation must go beyond instinct and be in good faith. 3. Court determines validity of strike a. To deny strike, court must find discrimination purposeful. b. Court’s reason should be stated on the record, including

subjective observations. c. Court must insure that record reflects racial composition of

jury panels, stricken jury, and final jury seated. e. Ultimate burden of persuasion always rests with opponent

of the challenge. Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995).

4. Establish procedure for challenges before jury selection begins. a. Advise counsel and parties before voir dire begins

concerning court’s procedure. b. Consider all challenges at bench/sidebar/out of presence of

jury. c. Raise issues sua sponte if necessary. d. Require counsel to object timely before challenged juror is

dismissed. e. Batson hearing must be held whenever one is requested. C. Waiver 1. Objection must be raised before jury is sworn. Ford v Georgia,

498 U.S. 411, 423, 111 S.Ct. 850, 857, 112 L.Ed.2d 935 (1991). 2. Must be raised at trial or I waived on appeal. 3. Plain error claim may still exist.

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D. Batson Progeny 1. Defendant need not be of same race as challenged juror to assert

juror’s right to equal protection. Powers v Ohio, 499 U.S. 400, 111 S.Ct. 1364, 1373, 113 L.Ed.2d 411 (1991).

2. Racially motivated peremptory challenges by the defense also

subject to review. Georgia v. McCullum, 505 U.S. 42, 112 S.Ct. 2348, 112 L.Ed.2d 33 (1992).

3. Applies to private parties in civil cases. Edmondson v. Leesville

Concrete Company, Inc., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991).

4. Gender motivated peremptory challenges also are prohibited.

J.E.B. v Alabama ex rel T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994).

XIII. ALTERNATE JURORS A. Number determined by court rule, statute, or agreement between court and

counsel. B. Alternates may be designated in advance or determined at conclusion of

trial. C. Same functions, powers, facilities, and privileges as regular jurors during

course of trial. XIV. JURY SWORN/UNSELECTED JURORS ARE EXCUSED A. Dismiss unchosen panel members. B. Administer oath to jurors. 1. Criminal case – be sure both sides ready; jeopardy attaches 2. If sequestered – oath of baliffs XV. JURORS PROVIDED WITH PRELIMINARY INSTRUCTIONS A. Trial to be fair in fact and fair in appearance. B. Advise of general trial precepts and procedure. C. Inform jurors of their required conduct.

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D. Emphasize that jurors are judges of facts. E. Explain why delays/recesses may occur. F. Explain courtroom/courthouse procedures, schedules, meal arrangements,

etc. XVI. SEQUESTRATION A. Often determined by court rule or statute. B. National trend is to discourage sequestration except in capital or high

profile cases. C. Be sure jurors have adequate notice and preparation time. XVII. JURY DELIBERATIONS A. Sequestration discretionary. B. Ex parte communication disallowed. Court must notify counsel of any

jury communication. C. Seating alternate juror. D. Court generally may not inquire about verdict. E. Inability of jury to decide. F. Jury requests to rehear evidence. G. Jury requests for additional instruction. XVIII. INABILITY TO RETURN VERDICT A. Make the record. B. Allow parties, counsel to consult. C. Recharging a jury. XIX. RETURN OF THE VERDICT A. Polling the jury upon request of any party or on court’s own motion.

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B. Each juror should be asked individually whether the verdict announced is his or her verdict.

C. If there is no unanimous concurrence, the jury may be directed to retire for

further deliberations or discharged. D. Inconsistent Verdicts 1. Civil cases – trial judge ordinarily refuses to accept verdicts,

advises jury of inconsistency, and returns it to jury room for further deliberation. Use care not to indicate how inconsistency is to be resolved.

2. Criminal cases – consistency between counts is unnecessary. F. Judicial Comment on Verdict – thanking jurors is appropriate, but praising

or criticizing verdict is not. E. Jury Nullification 1. FIJA (Fully Informed Jury Association) 2. Request for instructions a. United States v. Doughtery, 473 F.2d 1113 (D.C. Cir. 1972). b. No abuse of discretion if judge refuses to acknowledge doctrine of

jury nullification. E.g., United States v. Krzyske, 836 F.2d 1013, 1021 (6th Cir. 1988).

XX. JURY INNOVATIONS A. General Trends Numerous studies have been undertaken, including American Bar

Association, National Center for State Courts, and the States of Arizona, New York, California, Colorado, and the District of Columbia. Many other states now conducting projects or tests.

B. Results, recommendations, and identified issues are surprisingly similar: 1. Public education 2. Juror selection 3. Compensation and treatment

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4. Trial practices 5. Deliberations 6. Post-verdict activities C. Trial Innovations 1. Videotaped trials. 2. Projection of real-time transcription. 3. Dual juries. 4. Juror note-taking. 5. Juror submission of questions to witnesses. 6. Use of mini-summaries throughout evidence. 7. Juror notebooks for complicated trials. 8. Discussion about evidence during trial. 9. Alternates to observe jury deliberations. 10. Jury instructions before closing arguments. 11. Plain English jury instructions. 12. Allowing re-closing arguments if jury is deadlocked. D. Regarding Instructions 1. Give preliminary instructions and additional instructions when

needed. 2. Provide final instructions before attorney closing arguments. 3. Have instructions available to jury individually in writing or by

tape recorder or videotape. 4. Have a preferred method to handle questions during deliberations. 5. Carefully work special verdicts and interrogatories.

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6. Take special care with stalemated jury. E. Post Verdict Matters 1. Provide advice on how to handle media questions. 2. Carefully schedule verdict announcements in high profile cases. 3. Provide debriefing and/or professional guidance after highly

emotional cases. 4. Provide post verdict inquiries. 5. Provide exit interviews or questionnaires.

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B.

JURY MANAGEMENT TECHNIQUES

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ONE-DAY/ONE-TRIAL TERMS OF JURY SERVICE Technique In those jurisdictions having large enough populations, a large use of jury trials, and sufficient courtroom spaces, a person’s term of jury service may be feasibly limited to the completion of one trial. If not selected for a jury on the first day, he or she fulfills the jury service term by having been available on that day. Persons may be on call for several days, but once they report, their service is completed by serving one day or one trial. Advantages

1. Jury service that is limited to the longer of one day or one trial reduces the hardship associated with service, thus reducing the need for exemptions or excuses from jury service.

2. The reduced number of persons excused with one-day/one-trial jury service

terms increases the representativeness and inclusiveness of the jury pool.

3. One-day/one-trial jury service terms encourage courts to make more efficient use of juror time (since they have only one day to use the prospective juror’s services), thus increasing juror satisfaction with jury service.

4. Because one-day/one-trial jury service terms require courts to summon greater

numbers of prospective jurors, more persons have the educational experience of serving on a jury, which is generally a positive experience.

Disadvantages

1. Compared with courts that have longer terms for jury service, courts that use a one-day/one-trial system have to summon greater numbers of persons for jury service.

2. Compared with longer jury service terms, one-day/one-trial systems have

increased administrative costs for postage, forms, and court staff.

3. One-day/one-trial systems necessarily preclude the development of “seasoned jurors” or the ability to track juror performance on prior trials.

4. One-day/one-trial systems require courts to conduct juror orientation more

frequently.

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5. Inefficient use of juror time by courts using one-day/one-trial systems can result in a wasted day and a poor jury experience for the person summoned for jury service.

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ONE JUROR/ONE WEEK JURY SERVICE

Technique In most jurisdictions, it is feasible to limit a prospective juror’s service generally to one week, the primary exception being if a trial is extended for more than one week. One way in which this may be done is to operate a central jury pool for both civil and criminal jury trials. Approximately two months before a jury term is to begin, the clerk of court mails a pre-qualifying questionnaire to approximately 1,000 to 1,500 potential jurors depending on need. From this list, which, ideally, should be drawn from voter registration rolls and other sources, a pool of approximately 750 jurors are usually pre-qualified to be available for three jury terms (three weeks). From the pool, the computer then randomly selects about 250 persons per week to serve each term. 250 persons or so are then subpoenaed to be available for the first term. Allowances are then made for excuses or postponement; and their names are removed from the short-list. On the morning of the first day of the term, the potential jurors are again advised and screened in terms of qualifications. A video on jury service is then shown. Meanwhile, the computer randomly selects 30-40 persons for a 12-juror trial and 18-20 for a 6-juror trial from the initial 250 persons in the venire minus those who were excused from duty. If there are two 12-juror trials and one 6-juror trial held that day, a total of approximately 100 persons are then selected for voir dire examination by each of the three judges having a trial that day. Those selected and those not selected for service are kept in the pool for the week until all trials are concluded. Generally, this means that each juror serves no more than one week. Advantages 1. Jury service is generally limited to one week which reduces the hardship associated

with service, thus reducing the need for exemptions or postponements from jury service.

2. Jury service is made available to more persons for a brief period of time. Disadvantages 1. The effectiveness of the system does require some sophistication and resources to

obtain and maintain the computer operation. 2. A large jury room is generally needed to support this type of system.

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HANDLING OF JURIES IN ORLEANS PARISH CRIMINAL DISTRICT COURT

Jurors in Orleans Parish Criminal District Court receive a notice summoning them to the courthouse one month prior to the month they are expected to serve. The notice includes a short questionnaire asking for a date of birth, occupation, if there is a legal reason to be excused, etc. On the appointed date, the potential jurors appear in the jury lounge for a briefing about parking and building security. They also choose a two-week period of the given month for their service; they also elect which two days of the week (either Monday and Wednesday or Tuesday and Thursday) they would like to serve. There is no jury pool on Fridays. Therefore, any individual juror could conceivably serve on four juries if that juror is chosen on each day he is called to serve.

Two hundred twenty-five potential jurors are scheduled to appear on any jury day. (There are always some who do not show up because of illness, etc.) The jury commissioner is notified as soon as a section of court determines a case will be going to trial. If the matter to be tried is a felony 50 potential jurors, who are picked randomly by a computer, are sent into court for voir dire; 25 potential jurors are sent if the matter is a misdemeanor. If a juror sits for more than one day, many of the district court judges will then excuse the juror from a future day of service. On any given day, once the jury commissioner is satisfied no more jurors will be needed, the remaining pool is discharged until the next day of scheduled service.

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MULTIPLE VOIR DIRE The multiple voir dire approach consists of a judge selecting several juries on one day with the trial set to start some days in the future. The judge may start one trial immediately following the completion of the voir dires if time permits. Certain problems should be considered before the adoption of multiple voir dire. One is long voir dires. Long voir dires make multiple voir dire less desirable. However, it should be recognized that this procedure allows flexibility to jury selection and need not be adopted court wide or as a continuous practice. It may be used only on certain days or for certain types of cases. Another problem in the use of multiple voir dire is that some cases may plea or settle on the day the jury is told to report. However, this has not usually been the situation and a telephone call-in system has provided an effective solution. In Element 7, Court B is presented as an example of a small court utilizing this procedure in its low trial activity schedule for more efficient use of jurors. The variations are as follows:

• Courts Consisting of One to Three Judges – On the first day of the jury term, all summoned jurors report to one courtroom. Following check-in and orientation, a sufficient number of jurors are randomly drawn, and the first jury is selected. Usually, voir dire takes place in one courtroom with one judge conducting all the voir dires through the day, but the panel can be moved to the next judge’s courtroom for subsequent selections. Juror selection is random without replacement so that every person is given a first chance before anyone is selected again. Trial dates are determined prior to jury selection to avoid conflicting trial dates and to inform selected jurors when to report back.

• Courts Consisting of Four or More Judges – All jury trials for each week

are set for one day (usually Monday). When selecting juries for the coming week, the number set is determined so that four or five cases will actually go to trial. Jurors are instructed to report to the juror assembly room or to a courtroom where they are checked in and informed of the selection procedures. To avoid depleting the pool early in the morning and to eliminate unnecessary judge waits, trial starts are staggered so that the full efficiency of the pool can be realized.

Single-Day Impanelment Under single-day impanelment (e.g., Court C discussed in Element 7), all trials scheduled for the coming week or jury term for all judges in a court are set for jury selection on a single day when enough jurors to supply the demand are brought in. On this day, those in the pool are reused frequently, with prospective jurors participating in as many voir dires as necessary. Jurors are called in only on impanelment day and then for trials in which


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they have been selected. However, if juries need to be selected on other days, due to scheduling, witness, or speedy trial consideration, then a panel is randomly selected from the pool and brought in, or a standby panel is on call. Procedural Safeguards Under multiple voir dire, several juries are selected from a single panel and one trial begins immediately, and the juries for the other cases report back at a later time for the beginning of another trial. Prospective jurors who served in one case may have experience that might prejudice them as jurors for another case on which they had also been selected through the use of multiple voir dire. Recent case law supports reopening the voir dire when the trial jury returns to determine if anything, including service on another jury, would change any of their original answers given in the voir dire. Some time to explore this might be required. Another factor recognized by the courts is the effect of a “significant delay” between the time the juror is selected versus the time when the trial actually begins. Intervals of greater than thirty-nine days have been found to be significant. Voir Dire Methods Multiple voir dires and single-day impanelments are methods of organizing voir dires. The procedures used in the selection process itself are as varied as the judges involved. There appear to be three basic variations:

• Individual Method. Prospective jurors are examined for bias out of the hearing of other prospective jurors. They may be examined en masse for general cause challenges or may have completed a case-specific questionnaire on this case at home or in the court. Typical voir dire questions concerning the case, parties, witnesses, or experience under similar situations are asked. Individual voir dire is usually used only for very sensitive, notorious, or high-visibility cases.

• Panel or Box Method. A number of prospective jurors equal to the jury

size are randomly selected and take their place in the jury box. Persons struck for cause are replaced, as are persons peremptorily challenged. Thos challenged step down, and a replacement is selected from the panel for the position. The parties may not know who the next prospective juror will be. That person is then examined for cause and is then subject to a peremptory challenge. When all peremptory challenges are exercised, or both parties pass their remaining challenges, the voir dire is completed.

• Struck Jury. A number (or panel) of prospective jurors equal to the jury

size plus the total number of peremptories permitted is chosen. After examination, any persons challenged for cause are replaced. When the panel is “cause free,” the parties alternately strike names from the list of

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the panel. All peremptories need not be used. If all are not used, the jury is considered to consist of the first names selected that were not challenged.

If all peremptories are not used, the panel method may require fewer prospective jurors. However, the struck jury is preferred by many, because all prospective jurors to be considered are known when the peremptory challenges are exercised. The struck jury also has less movement of persons and less stigma attached to the challenging process.

No case law on general voir dire methods existed until 1986 when the Fourth Circuit addressed the struck jury method. In that case, the court discussed the “box” and “struck” methods and held that when the panel of “cause free” prospective jurors exceeds the strikes plus the jury, the parties should be made aware of the order the court will use in selecting the jury. The struck jury method is recommended in ABA Standard 9H.

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CALENDAR COORDINATION Levels of Calendar Coordination Court use three levels of calendar coordination: no coordination, some coordination or communication, and communication with feedback (i.e., full coordination). No Coordination In this level of calendar coordination, the jury system operates independently from the rest of the court. This level is exemplified by a small county, which summons a group of prospective jurors every Monday morning, even though the record shows that only three or four trials are held each year. Another example is a metropolitan court that had 200 to 300 jurors brought in during the Thursday and Friday after Christmas, even though no judges were on the bench. In both courts, the jury clerks were performing as they had been instructed, and no one in authority had modified those instructions. The situation of “no coordination” is so patently ridiculous that it should be avoided regardless of the size of court or any condition of jury service, for it not only costs the court of money but also gives the jurors and the people of the community an impression of ineffective court activity and management. Some Coordination This condition varies from the avoidance of “zero day” extremes to fairly elaborate procedures for predicting the number of trials expected the next day or later on the same day. For instance, late each day the jury clerk in Prince George’s County, Maryland, checks by telephone with each of the judges’ clerks to determine the expected number of trial starts on the following day and uses that estimate as the basis for the number of jurors to call in via a transcribed telephone message. In Dallas, a less-selective coordination is practicable because only enough jurors to meet minimum needs of the day are summoned in the morning. During the morning, the clerk checks with each of the judges or their clerks to determine the additional number that will be needed that afternoon. The estimate provides the basis for the 11:30 a.m. telephone message that instructs standby jurors to come in at 1:00 p.m. These are basically one-way communications between the calendaring source, whether it’s the judge (individual calendars) or the clerk (master calendars) and the jury clerk. Full Coordination This level of coordination involves not only an accurate prediction of the number of jurors to bring in but also some flexibility in the calendaring process to improve juror utilization. For instance, in Shawnee County (Topeka, Kansas), before a trial date is given the date is checked with the jury coordinator. Usually, the purpose of this coordination is to intensify trial activity at the times when jurors are available. In small

Source: Source: Case Management, American Academy of Judicial Education, Court Improvement Through Education.

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courts, multiple voir dire is used to pick several juries from a group of jurors called in for that day, with the trials being set to start on subsequent days. Small courts in many states, as well as most of the small federal district courts, achieve a rather close coordination between the jurors needed and the calendar. Larger courts can use an impanelment day to force calendar coordination by scheduling all voir dires to a common day. The concern then becomes how large a venire to bring in. Consolidation of Trial Starts Many jurisdictions have been independently exploring the value of intensive jury operation. For instance, St. Louis County (Clayton, Missouri) starts all its trials on Mondays and Wednesdays unless prior arrangements are made. Others – like Ann Arbor, Michigan; Madison; and Jacksonville, Florida – bring in pools on Mondays only, setting up juries for the week at that time regardless of the days on which each actual trial will begin. Some judges may even pick juries for other judges. Selecting juries on Wednesday for all trials for Wednesday, Thursday, and Friday would intensify activity and improve juror usage. Trials could be started on Thursday or Friday if desired, so long as the jury (or at least the panel) was selected from the Wednesday pool. Successful operation of the Monday/Tuesday/Wednesday pool might naturally lead to consideration of whether a Monday/Wednesday pool might be even better. Evaluating Trial Prediction Trial prediction may be achieved in many ways, depending upon the calendaring method used and the recognition of the reliance of cooperation to prevent unnecessary waiting by jurors in the court. Knowledge of this prediction rate is useful to the jury administrators, for without it, they would always be calling in too many jurors. With it, they can estimate much more closely the probable needs for the next day on the basis of the judges requesting panels. The jury staff in one large court is helped in this estimate by having a record of the prediction rate of each of the court’s twenty-six judges, for when some judges order panels, they always go to trial, whereas when others order panels, the chances that a trial will start are slim. Implementation The object of calendar coordination is to establish an effective level of communication between those managing the jury system and those managing the court calendar. This can be achieved by the following:

1. Establish procedures whereby each court or calendar office orders panels from the jury administrator for the next day of jury sessions, or otherwise informs the jury

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administrator of the court’s needs. An ongoing record listing the orders by day should be kept by the jury staff.

2. Develop the prediction rate for the court and, after approval by the chief judge,

use that prediction rate in estimating the number of jurors to call in. Use a call-in system to bring in that number and have a provision whereby last-minute needs can be met.

3. Measure the number of daily panel requesting for a period of time. If there tends

to be less than three panels per day, then a method of intensifying trial start activity should be sought, presumably

• Multiple voir dire in a small court • Single-day impanelment in a midsize court • Intensification of trial starts on other days in a large court

4. Determine the number of zero days occurring and the reasons associated with

such zero days as shown in Element 7. The jury administrator would then report these to the chief judge.

5. Prepare a weekly prediction rate and include it in the monitoring and control

function of Element 12.

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PART XIV

MONITORING AND INFORMATION MANAGEMENT

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A.

GENERAL MONITORING AND INFORMATION

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B.

AUTOMATED CASE MANAGEMENT INFORMATION SYSTEMS

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COURT CASE MANAGEMENT INFORMATION SYSTEMS COMPUTER SOFTWARE THAT COLLECTS, ORGANIZES, PROCESSES, STORES, RETRIEVES INFORMATION IN WAYS THAT:

• REDUCE REDUNDANT DATA ENTRY

• REDUCE DELAYS

• IMPROVE HEARINGS AND TRIALS

• IMPROVE SENTENCING

• IMPROVE THE COORDINATION AND

INTEGRATION OF COURT AND JUSTICE SYSTEM FUNCTIONS

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HARDWARE REQUIREMENTS • MAINFRAME • SERVERS

• STAND-ALONE DESKTOPS • LAPTOPS

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SOFTWARE REQUIREMENTS FOR SERVER SYSTEMS

WINDOWS WEB-BASED DATABASE

• ACCESS • SQL • ORACLE

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LEVELS OF INTEGRATION

FUNCTIONAL INTEGRATION CASE INTEGRATION DATA SHARING LOCAL STATEWIDE

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FUNCTIONAL INTEGRATION

• DOCKETING CASE INTAKE AND INITIATION PROPER VENUE DETERMINATION INDEXATION PARTICIPANT IDENTIFICATION CASE IDENTIFICATION ASSESSMENT INFORMATION CASE ALLOTMENT CALENDARING SCHEDULING TICKLERS

CASE TRANSFER CAPABILITIES

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MANUAL FILE MAINTENANCE BAR CODING DOCUMENT NUMBERING RECORDS MANAGEMENT VIRTUAL FILE MAINTENANCE E-FILING

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• DOCUMENT AND FORM GENERATION

FORMS DOCUMENTS

SUBPOENAS SUMMONS WARRANTS NOTICES

ORDERS/JUDGMENTS

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• MANAGEMENT OF HEARINGS/

PROCEEDINGS CHECKLISTS AUTOMATED MINUTE ENTRIES ORDERS/JUDGMENTS AUTOMATIC TRIGGERING

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• TRACKING

LOCATIONS PARTICIPANTS CASE SCHEDULE CASE STATUS SERVICE OF PROCESS CONDITIONAL RELEASE WARRANTS TRANSFERS PROPER VENUE IMPROPER VENUE CHANGE IN VENUE APPEALS

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HEARINGS AN PROCEEDINGS TYPES OF HEARINGS CONTINUANCES ACTIONS ADJUDICATIONS DISPOSITIONS COMPLIANCE WARRANTS TRANSFERS

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• REPORTING (INDIVIDUAL CASES,

GROUPS OF CASES, STATISTICS)

PARTICIPANT REPORTS CASE REPORTS SERVICE OF PROCESS CONDITIONAL RELEASE HEARINGS AND PROCEEDINGS

TYPES CONTINUANCES

ACTIONS ADJUDICATIONS DISPOSITIONS COMPLIANCE WARRANTS TRANSFERS

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